Google to Present Motion to Dismiss May 2 in VPPA Class Action

Google will present a motion to dismiss a consolidated privacy class action against it May 2, said attorney Benedict Hur in a Tuesday notice of motion to dismiss (docket 4:22-cv-05652) in U.S. District Court for Northern California in Oakland.

Plaintiffs’ “fatally flawed” claim alleges Google has retained, “not disclosed,” personal identifiable information associated with users’ video streaming rentals on YouTube and Google Play in violation of the New York Video Consumer Privacy Act (NYVCPA) and the Minnesota Video Privacy Law (MVPL).

The “nearly identical” laws demonstrate that civil liability provisions are limited to claims alleging wrongful disclosure of covered information, said the notice. The “exact legal principle” was confirmed by another judge in the court two weeks ago in Baptise v. Apple, in which the court ruled the statutes at issue were modeled after the Video Privacy Protection Act, where “only the wrongful disclosure provision[s] can form the basis of liability,” it said.

Plaintiffs can’t bring their claims under New York or Minnesota laws because they’re bound by the choice of law provision in Google’s terms of service, requiring them to litigate claims under California law, the notice said. The company’s terms of service stipulate that California laws will apply to any disputes arising out of plaintiffs’ use of YouTube and Google Play services, it said.

Plaintiffs allege Google improperly retained personal identifiable information it collected in connection with their video streaming rentals, including payment information, in violation of the NYVCPA and MVPL, which requires providers to destroy PII “as soon as practicable” or within a year from the date it’s no longer necessary. Google argues the NYVCPA and MVPL only provide a private action for disclosure of a person’s rental history to third parties, not to what a “a business may do for various internal business purposes.”

Plaintiffs’ “misguided attempt” to have the court be the first to provide a “private right of action for the alleged wrongful retention of information under these third-year old statutes should thus be denied with prejudice,” said the notice. If mere retention of information could give rise to a private right of action under sections of the New York and Minnesota laws, plaintiffs have “failed to properly allege a claim,” the notice said, saying the provisions only require information to be destroyed when it is no longer necessary to use it for the purpose for which it was collected.

An amended January complaint (see Ref:2301300036]) is an amalgamation of three similarly structured class actions, by plaintiff Burke Minahan in Oakland, Moshe Torczyner in San Jose and David Landfair and Samuel Gershman in San Jose. In “direct contravention” of the protections afforded to consumers in Minnesota and New York, Google retains its video-viewing records “indefinitely,” said the complaint.