Law Firm in Google Privacy Action Files Multiple State Suits for Monetary Damages

Plaintiffs in the 180-plus complaints are all within the scope of the certified classes in the June 6, 2020 Brown v. Google class action in Oakland district court, said the complaints. The federal court certified two nationwide classes in Brown under Rule 23(b)(2) to pursue the claims for injunctive relief.

Google agreed this month in a statement of nonopposition and clarification to an April 1 proposed settlement (docket 5:20-cv-03664) in Brown v. Google to rewrite its disclosures to inform users that it collects their private browsing data in its privacy policy and on the Incognito splash screen. If the settlement is approved by U.S. District Judge Yvonne Gonzalez Rogers, the settlement could apply to 136 million Google users. A hearing determining final approval of the proposed settlement is set for July 30 at 2 p.m. Google supports final approval of the settlement, but it disagrees with the legal and factual characterizations.

Google has begun implementing the changes without waiting for court approval, agreeing to delete users’ billions of data records that reflect their private browsing activities and to limits on future data collection, said the proposed settlement. For the next five years, Google must change Incognito mode, enabling users to block, by default, third-party cookies, which Google has used in the past to track users in Incognito mode on non-Google websites, the document said. The settlement delivers relief to class members “without the delay and uncertainty inherent in trial and any appeal,” it said. Plaintiffs’ damages expert valued the relief through the settlement at over $5 billion.

But the plaintiffs insisted on retaining class members’ rights to sue Google individually for damages, and Boies Schiller began filing those lawsuits April 8 with as many as 25 cases a day in California state court, listing 50 plaintiffs each. As recently as Monday, the law firm filed nine more cases seeking statutory, punitive and nominal damages. The plaintiffs also seek an order requiring Google to disgorge all revenue and profits wrongfully obtained, “to be held in a constructive trust.”

“These copycat complaints are meritless and we will defend ourselves vigorously,” emailed a Google spokesperson Tuesday.

A complaint filed Monday in the Santa Clara court by Gerald Ewart of Menomonee Falls, Wisconsin, brings claims on behalf of 49 other Google users from Georgia, New Jersey, Texas, Pennsylvania, Mississippi, Florida, Missouri, Illinois, Tennessee, Kentucky, California, North Carolina, Utah, Arizona, Indiana, Michigan, Virginia, Wyoming, Oregon, New York, Louisiana and Nevada. The plaintiffs used Google’s Incognito mode to visit non-Google websites without being signed in to any Google account. They “have now decided to separately seek monetary relief from Google based on Google’s unlawful acts,” said the complaint (docket 24CV435378).

Google never asked for the plaintiffs’ permission to sell their data, instead “impermissibly” intercepting their communications with websites and selling data gleaned from those communications, the complaint said. The practices damage plaintiffs’ privacy and their ability to control their own personal rights and data, it said. None of the plaintiffs consented to or authorized Google’s tracking and interception of their confidential communications while they were browsing in Incognito mode, it said.

California’s “substantive laws” apply to every plaintiff, regardless of where they reside, said the complaint, citing Google's terms of service saying California law will govern all disputes related to the terms. By choosing California law for the resolution of disputes covered by its terms of service, Google “concedes that it is appropriate for this Court to apply California law to the instant dispute to all Plaintiffs,” it said. California laws can also be constitutionally applied under the Due Process Clause, the complaint said.

The complaint asserts violations of California’s Invasion of Privacy Act, the Comprehensive Computer Data Access and Fraud Act and Unfair Competition Law, plus claims of invasion of privacy, breach of contract and unjust enrichment. The plaintiffs request a jury trial.