A.B., a minor, by & through his guardian Jen Turner v. Google LLC

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A.B., A MINOR, BY AND THROUGH HIS GUARDIAN JEN TURNER, et al., Plaintiffs, v. GOOGLE LLC, et al., Defendants.

No. 5:23-cv-03101-PCP

United States District Court, N.D. California

December 2, 2024

ORDER DENYING MOTION TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL

RE: DKT. NO. 47

P CASEY PITTS, UNITED STATES DISTRICT JUDGE.

Plaintiffs six minors under the age of 13 domiciled in California Florida, and New York, allege that defendants Google LLC, AdMob Google Inc., and AdMob Inc. unlawfully invaded their privacy by collecting their personal information through various mobile apps without parental consent. Defendants moved to dismiss plaintiffs' complaint for failure to state a claim and the Court denied that motion. Defendants now ask the Court to certify the order denying their motion to dismiss for interlocutory appeal under 28 U.S.C. § 1929(b). For the following reasons, defendants' motion is denied.

BACKGROUND

Google maintains a marketplace for Android mobile phone apps called the Google Play Store, where AdMob Google and AdMob (both owned by Google) show advertisements to users of such apps. The AdMob software development kit (SDK) purportedly enables Google to collect data from Android app users and to show them targeted advertisements based on this data. AdMob allegedly pays Android app developers to integrate its SDK into their mobile apps in order to make this data collection and targeted advertising possible.

In April 2015, Google developed its Designed for Families (DFF) program for children's apps, which purportedly implemented the federal Children's Online Privacy Protection Act (COPPA) provisions protecting children under the age of 13 from having their personal information collected without parental consent. COPPA states: “It is unlawful for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed [by the Federal Trade Commission].” 15 U.S.C. § 6502(a). The FTC has interpreted “website or online service” to include mobile apps as well as individual channels like the Google Play Store that serve as the platform for such apps. 16 C.F.R. § 312.2. The relevant FTC rule has interpreted “directed to children” to mean that data cannot be collected through apps that are primarily child-directed or for mixed audiences but not properly age-gated.

In 2018, security researchers from the University of California, Berkeley purportedly informed defendants of surreptitious tracking and data collection in violation of COPPA by developers of apps included in Google's DFF program. Specifically, the researchers found that 2,667 apps were potentially incorrectly characterized by developers as directed to “mixed audiences” or “not primarily directed to children,” allowing those developers to engage in defective age-gating and thus participate in prohibited behavioral advertising to children. Dkt. No. 1, at 36. Based on the results of the study, Google banned app developer Tiny Lab Productions from its Play Store in September 2018. The New Mexico Attorney General's Office then brought a lawsuit against Tiny Lab Productions, various advertising networks including AdMob, and Google as the operator of the Play Store. N.M. ex rel. Balderas v. Tiny Lab Prods., 457 F.Supp.3d 1103 (D.N.M. 2020). On December 10, 2021, as part of a settlement agreement and without admitting any liability, Google and AdMob agreed to implement policy changes to prevent the mischaracterization of DFF apps. Dkt. No. 27, at 12.

Plaintiffs here allege that defendants obtained personal information from children under the age of 13 through Android apps in violation of COPPA and other common law privacy protections. Google purportedly accepted children's apps (including 86 from the app developer Tiny Lab Productions) into its DFF program after individualized review but nonetheless allowed the apps to be categorized as for a “mixed audience” or “not primarily intended for children” without proper age-gating, thereby enabling developers to skirt COPPA's prohibitions on collecting data from minors under the age of 13. Dkt. No. 1, at 30. Plaintiffs further allege that defendants knew about the collection of personal data from children through DFF program apps. Plaintiffs assert the following causes of action: (1) violation of California's Unfair Competition Law (UCL); (2) violation of common law intrusion upon seclusion; (3) unjust enrichment under California law; (4) violation of California's constitutional right to privacy; (5) violation of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA); (6) unjust enrichment under Florida law; (7) violation of New York's General Business Law (NYGBL); and (8) unjust enrichment under New York law. Plaintiffs' claims under the UCL, FDUTPA, and NYGBL are all premised on an underlying COPPA violation.

Defendants moved to dismiss plaintiffs' complaint, arguing that the purportedly unlawful conduct pertains only to developer Tiny Lab Productions, which was banned from the Google Play Store in September 2018. Defendants also argued that plaintiffs: (1) fail to provide fair notice under Rule 8 because they do not allege when the supposed misconduct occurred and most of the state law claims have statutes of limitations between two and four years; (2) lack standing to seek prospective injunctive relief because they do not demonstrate a threat of being harmed again; (3) cannot assert any state law claims because they are preempted by COPPA; (4) fail to state a claim under the UCL because they have not established an economic injury, do not allege wrongful conduct under any of the three prongs, and are not entitled to equitable relief; (5) fail to state a claim under New York and Florida's consumer protection laws because Google's Terms of Service contain a California choice-of-law provision and plaintiffs do not plead claims with particularity or provide a sufficient nexus to New York and Florida; (6) fail to state claims for common law and constitutional right to privacy violations under California law because they do not allege egregious conduct violating a reasonable expectation of privacy; and (7) fail to state a claim for unjust enrichment because this cause of action does not exist.

On June 18, 2024, the Court denied defendants' motion to dismiss. The Court held that: (1) plaintiffs' claims are not time-barred because plaintiffs allege that unlawful tracking and advertising was occurring at least until 2021; (2) plaintiffs have standing to seek injunctive relief because defendants have not provided evidence that the information that was purportedly unlawfully collected has been deleted and the harm from defendants' alleged possession of that information therefore continues; (3) plaintiffs' state law claims are not preempted by COPPA because plaintiffs pleaded that defendants reviewed each app submitted to the DFF program to ensure its benefit or relevance to children under thirteen and thus plausibly had actual knowledge that certain apps were being mischaracterized as for “mixed audiences” when they were in fact child-directed; (4) plaintiffs adequately state a claim under the UCL because privacy harms can constitute economic injury sufficient to confer UCL standing and an alleged COPPA violation falls under the unlawful prong of the UCL; (5) plaintiffs adequately state a claim under New York and Florida's consumer protection laws because Google's Terms of Service were neither incorporated by reference in the complaint nor judicially noticeable, plaintiffs pleaded with particularity that Google engaged in a deceptive act that resulted in injury, and plaintiffs were injured by the alleged misconduct while in New York and Florida; (6) the alleged violation of COPPA is sufficient to plead an egregious violation of a reasonable expectation of privacy; and (7) plaintiffs adequately state a claim for unjust enrichment, which the Ninth Circuit has recognized as a standalone cause of action under California law.

Defendants now move to certify the Court's order denying their motion to dismiss for interlocutory review under 28 U.S.C. § 1292(b). Defendants seek review of two issues: (1) “the standard, under the Children's Online Privacy Protection Act (‘COPPA'), for assessing whether and when a third-party service provider, like Google, obtains actual knowledge that it is collecting the personal information of a user under 13 from a primarily child-directed service”; and (2) “whether an alleged misappropriation of personal information effects a loss of ‘property' sufficient to confer statutory standing under California's Unfair Competition Law (‘UCL').” Dkt. No. 47, at 1.

LEGAL STANDARDS

The final judgment rule generally mandates that “parties may appeal only from orders which end the litigation on the merits and leave nothing for the court to do but execute the judgment.” Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010) (cleaned up); see also In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981) (describing the federal courts' “basic policy of postponing appellate review until after the entry of a final judgment”). Under exceptional circumstances, however, an interlocutory appeal may be permitted to allow for the immediate review of a non-dispositive order. Pursuant to 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory appeal if three conditions are met: the order (1) involves a controlling question of law (2) as to which there is substantial ground for difference of opinion and (3) an immediate appeal may materially advance the ultimate termination of the litigation.

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