Brown v. Google LLC

Background

Five named plaintiffs—Chasom Brown, William Byatt, Jeremy Davis, Christopher Castillo, and Monique Trujillo—brought the case individually and for others similarly situated against Google LLC. The second amended complaint asserted seven claims under federal and California law. The motion addressed two of them: breach of contract and violation of California’s Unfair Competition Law.

The plaintiffs alleged that Google collected and monetized data about users who visited websites using Google Analytics or Google Ad Manager while their browsers were in private browsing mode. They alleged that Google’s Privacy Policy, Chrome Privacy Notice, “Search & Browse Privately” page, and Incognito Splash Screen represented that private browsing would limit or prevent the collection of their data.

Motion-to-Dismiss Standard

The court applied Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint contains enough factual allegations to state a legally plausible claim. At this stage, the court generally accepts the complaint’s factual allegations as true and views them favorably to the nonmoving party, subject to exceptions for judicially noticeable facts and legal conclusions.

Breach of Contract

The plaintiffs alleged that their contract with Google included the Google Terms of Service, Chrome and Chrome OS terms, Chrome Privacy Notice, Google Privacy Policy, “Search & Browse Privately” page, and Incognito Splash Screen. They claimed those materials promised that Google would not collect their data while they used private browsing mode.

The court held that a reasonable user could read the contract as incorporating the Incognito Splash Screen. Under California law, a contract may incorporate another document when it guides or directs the reader to that document; the document need not be named expressly. The court reasoned that Google’s privacy documents encouraged users to enter Incognito Mode and gave instructions for doing so, while the Incognito Splash Screen appeared when a user entered that mode.

The court also held that a reasonable user could read the contract as incorporating Google’s Privacy Policy after March 31, 2020. Although the current Terms of Service said the Privacy Policy was not part of those terms, the Chrome Privacy Notice independently referred to the Privacy Policy. The Terms of Service also stated that service-specific additional terms would govern if they conflicted with the general terms. The court therefore allowed the plaintiffs to rely on the March 31, 2020 version of the Privacy Policy.

Finally, the court held that a reasonable user could read the contract as promising that private browsing would prevent Google from collecting browsing data. It considered the privacy-related documents together rather than isolating individual statements. The court concluded that the plaintiffs had adequately stated a breach-of-contract claim and denied Google’s motion to dismiss that claim.

California Unfair Competition Law Claim

The plaintiffs alleged that Google’s data collection was unlawful and unfair because it violated several federal and California laws and because Google breached its contract. They alleged that they suffered economic harm through the loss or reduction in value of their personal information.

The court held that the plaintiffs plausibly alleged that they lost money or property. It reasoned that the complaint described a market in which users could receive payment for sharing browsing data and alleged that Google obtained and sold the data without paying the plaintiffs. The court found two plausible theories of economic injury: the plaintiffs may have received less than they otherwise would have for their data, and Google’s collection and sale of the data may have diminished the value of the plaintiffs’ future property interest in that data. The court said it did not need to decide whether data itself qualifies as property under the Unfair Competition Law.

The court rejected Google’s argument that the plaintiffs had to plead reliance. It explained that reliance is required for a Unfair Competition Law claim based on misrepresentations, but the plaintiffs alleged that their claim was based on Google’s unlawful data collection and the underlying statutory and common-law violations. The court therefore denied Google’s request to dismiss the Unfair Competition Law claim.

As to remedies, the court agreed that the plaintiffs could not seek non-restitutionary disgorgement of Google’s profits. However, it held that the plaintiffs could proceed on a theory of restitution based on the alleged diminution in value of their personal data. The court stated that restitution was the only monetary remedy the plaintiffs could seek under the Unfair Competition Law.

Disposition

The court denied Google’s motion to dismiss. The ruling allowed the breach-of-contract and Unfair Competition Law claims to proceed past the pleading stage; it did not finally decide whether Google was liable. The court also ruled that the plaintiffs could seek restitution but not non-restitutionary disgorgement under the Unfair Competition Law.