In re Google Assistant Privacy Litigation

Background

This consolidated consumer class action concerns Google Assistant, a voice-activated virtual assistant used with Google Home, Android smartphones, and other devices. Plaintiffs allege that Google Assistant sometimes recorded and transmitted audio when users had not said an activation phrase, such as “Okay Google” or “Hey Google,” and had not manually activated the assistant. They allege that Google used those recordings to improve the service and target personalized advertising, violating federal and state privacy statutes, the California Constitution, and California common law.

The case began in July 2019. Google filed four motions to dismiss, which resulted in dismissal on the merits of several claims, including claims under California’s Consumer Legal Remedies Act, common-law fraud, and declaratory judgment. Google later answered the operative complaint in January 2022 and asserted that plaintiffs and putative class members had agreed to arbitrate their claims, while reserving its right to seek arbitration after confirming applicable agreements.

Google then continued litigating the case for approximately nine months, including numerous discovery matters and requests for review of discovery rulings. Fact and expert discovery closed in October 2022. In August 2022, Google also filed a motion for summary judgment seeking adjudication of the remaining claims, but the court terminated that motion without prejudice because of a scheduling issue and did not reach its merits. Google raised arbitration again in its opposition to class certification in September 2022. In December 2022, the court certified a Purchaser Class pursuing breach-of-contract and California Unfair Competition Law claims.

Motion and Arguments

Google moved to compel arbitration on July 21, 2023. It identified two possible arbitration agreements: the Google Arbitration Agreement for Devices, Related Accessories, and Related Subscription Services, and the Google Store Sales Terms. Google did not seek arbitration as to particular individuals; instead, it sought to modify the certified Purchaser Class to exclude people who had entered into one or both agreements.

Plaintiffs argued that Google had waived its right to compel arbitration. They also argued that Google had not shown that class members agreed to either arbitration agreement, that the agreements did not apply to the claims, and that the arbitration provisions were unconscionable and unenforceable. Plaintiffs contended that the class claims were based on Google’s Terms of Service, which did not contain an arbitration provision and instead provided for litigation in federal or state courts in Santa Clara County, California.

Legal Standard

The court applied the Ninth Circuit’s two-part test for waiver of arbitration: the party opposing arbitration must show that the other party had knowledge of an existing right to compel arbitration and intentionally acted inconsistently with that right. The court considers the totality of the circumstances. A party generally acts inconsistently with arbitration when it intentionally chooses not to seek arbitration and actively litigates the merits for a prolonged period to take advantage of court proceedings. The party asserting waiver bears the burden, but that burden is not heavy, and it need not prove prejudice.

Court’s Analysis

The court found that plaintiffs established Google’s knowledge of an existing arbitration right. The evidence showed that Google began using the device arbitration agreement in 2018 and that the current version had been used since October 2019. The arbitration provision in the Google Store Sales Terms had been in effect since August 3, 2020. Because Google drafted the provisions, the court treated Google as having knowledge of them. The court also rejected Google’s argument that it lacked a present ability to seek arbitration before class certification, explaining that knowledge of an existing right does not require a present ability to enforce the agreement.

The court also found that Google intentionally acted inconsistently with its arbitration right. Google waited two and a half years before first mentioning arbitration in its answer, after filing four motions to dismiss. It then participated extensively in discovery, filed a motion for summary judgment addressing issues central to the class claims, and waited approximately seven more months after mentioning arbitration in its class-certification opposition before filing the motion to compel arbitration nearly four years after the complaint.

The court compared Google’s conduct with Ninth Circuit decisions involving waiver. It found Google’s conduct unlike the conduct in a case where a defendant consistently asserted arbitration from the beginning, avoided merits motions, conducted only limited discovery, and moved to compel arbitration within ten months. The court found Google’s conduct more similar to a case in which a defendant waited years, conducted extensive discovery, and sought judicial resolution of the merits before invoking a particular arbitration agreement.

The court assumed, solely for purposes of analyzing waiver, that the two arbitration agreements applied and were enforceable. Because it found that Google had waived any right to compel arbitration under those agreements, it did not decide plaintiffs’ arguments about whether the agreements applied, whether class members had agreed to them, or whether the provisions were unconscionable.

Disposition

Judge Beth Labson Freeman concluded that plaintiffs had established Google’s waiver of its right to compel arbitration. The court denied Google’s motion to compel arbitration and terminated ECF 397. The order did not decide the applicability or enforceability of the arbitration agreements.