Hubbard v. Google LLC

546 F.Supp.3d 986

Nichole HUBBARD, et al., Plaintiffs,

v.GOOGLE LLC, et al., Defendants.

Case No. 19-cv-07016-BLF

United States District Court, N.D. California, San Jose Division.

Signed July 1, 2021

David S. Golub, Ian Wise Sloss, Steven Bloch, Silver Golub and Teitell LLP, Stamford, CT, Caroline Camille Corbitt, Jonathan Krasne Levine, Pritzker Levine LLP, Emeryville, CA, for Plaintiff Nichole Hubbard.

Caroline Camille Corbitt, Jonathan Krasne Levine, Pritzker Levine LLP, Emeryville, CA, for Plaintiffs Jay Goodwin, Bobbi Dishman, Renee Gilmore, Cara Jones, Justin Efros.

Jonathan Krasne Levine, Caroline Camille Corbitt, Pritzker Levine, LLP, Emeryville, CA, for Plaintiffs C.H., E.J., N.J., A.J., L.J., J.A.E., J.R.E., M.W., A.G., C.D.

Patrick J. Vallely, Edward F. Haber, Pro Hac Vice, Shapiro Haber & Urmy LLP, Boston, MA, for Plaintiff Paula Ridenti.

Edith Ramirez, Adam Cooke, Michelle A. Kisloff, Hogan Lovells US LLP, Washington, DC, Christopher J. Cox, Hogan Lovells US LLP, Menlo Park, CA, Gregory F. Noonan, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Helen Yiea Trac, Hogan Lovells US LLP, San Francisco, CA, for Defendants Google LLC, YouTube LLC.

Christopher Chorba, Jeremy Sokol Smith, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Cassandra Lee Gaedt-Sheckter, Joshua H. Lerner, Gibson, Dunn and Crutcher LLP, Palo Alto, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendants Cartoon Network, Inc., Cartoon Network Studios, Inc.

Adya Simone Baker, Pro Hac Vice, Jeffrey G. Landis, ZwillGen PLLC, Edith Ramirez, Hogan Lovells, Washington, DC, Jui-Ting Anna Hsia, ZwillGen Law LLP, San Francisco, CA, for Defendants DreamWorks Animation LLC, DreamWorks Animation Television, LLC.

Jeremy Seth Goldman, Amy Rebecca Lawrence, Frankfurt Kurnit Klein Selz PC, Los Angeles, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendants Hasbro, Inc., Hasbro Studios LLC.

Jonathan Hugh Blavin, Attorney at Law Munger, Tolles & Olson, LLP, San Francisco, CA, Ariel Tal Teshuva, Jordan Dentler Segall, Nefi D. Acosta, Munger Tolles & Olson LLP, Los Angeles, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendant Mattel, Inc.

Edith Ramirez, Hogan Lovells, Washington, DC, Elana Rebecca Levine, Jacobson, Russell, Saltz, Nassim & de la Torre, LLP, Michael Jeffrey Saltz, Jacobson, Russell, Saltz & Fingerman LLP, Los Angeles, CA, for Defendant Remka, Inc.

Edith Ramirez, Hogan Lovells, Washington, DC, Elana Rebecca Levine, Jacobson, Russell, Saltz, Nassim & de la Torre, LLP, Los Angeles, CA, for Defendants RTR Production, LLC, RFR Entertainment, Inc.

Angel A. Garganta, Venable LLP, San Francisco, CA, Christina Marie Nordsten, Sarah E. Diamond, David Edward Fink, Venable LLP, Los Angeles, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendant Pocketwatch, Inc.

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

[Re: ECF 125]

BETH LABSON FREEMAN, United States District Judge For the second time, this Court must decide whether Plaintiffs in this action have alleged illegal behavior on the part of Defendants that goes beyond what Congress has regulated under the Children's Online Privacy Protection Act, 15 U.S.C. §§ 6501 – 6506 ("COPPA"). For the second time, this Court finds that they have not.

Minor Plaintiffs C.H., by and through their guardian ad litem Nichole Hubbard; E.J., N.J., A.J., and L.J., by and through their guardian ad litem Cara Jones; J.A.E. and J.R.E., by and through their guardian ad litem Justin Efros; M.W., by and through their guardian ad litem Renee Gilmore; A.G., by and through their guardian ad litem Jay Goodwin; and C.D., by and through their guardian ad litem Bobbi Dishman, ("Plaintiffs") bring this suit against Defendants Google LLC and YouTube LLC (collectively "Google") and Cartoon Network, Inc., Cartoon Network Studios, Inc., ChuChu TV Studios, DreamWorks Animation LLC, DreamWorks Animation Television, LLC, Hasbro, Inc., Hasbro Studios LLC, Mattel, Inc., Remka, Inc., RTR Production, LLC, RFR Entertainment, Inc., and Pocketwatch, Inc. (collectively "Channel Owners"). Plaintiffs allege Defendants unlawfully violated the right to privacy and reasonable expectation of privacy of their children, who are all under thirteen years of age and subject to COPPA's protections. See Third Am. Compl. ("3AC"), ECF 121. Plaintiffs have brought exclusively state law claims against Defendants. Id.

On December 21, 2020, this Court granted Defendants’ motion to dismiss and held that Plaintiffs’ claims were preempted under COPPA. See Order ("Prior Order") ECF 117. Now, Defendants have filed another motion to dismiss, maintaining that the claims in Plaintiffs’ third amended complaint are still preempted by COPPA. See Mot., ECF 125. Plaintiffs oppose, arguing that they have sufficiently alleged deceptive conduct on the part of Defendants that goes beyond the conduct regulated by COPPA. See Opp'n, ECF 127. The Court agrees with Defendants and finds Plaintiffs’ claims remain preempted by COPPA. Accordingly, the Court GRANTS Defendants’ motion. As further explained below, because Plaintiffs could potentially cure the defects in their complaint with named plaintiffs in the 13-16 age range, the Court dismisses the complaint with leave to amend.

I. BACKGROUND

Google operates the video sharing-platform YouTube ("YouTube platform"). 3AC ¶ 2. The YouTube platform is accessible as a website, mobile application, or via an application on a set-top streaming device that can connect to a television. Id. Any individual or organization registered with YouTube, through a Google account, may upload videos they have created. Id. These videos are uploaded to that individual's or organization's "channel." Id. Individuals do not have to register or sign in to view videos uploaded to the YouTube platform. Id. There is no age verification required to view videos. Id.

The YouTube platform is "the #1 website regularly visited by kids." 3AC ¶ 4. Defendants Mattel and Hasbro, classic toy brands, are among the Channel Owners who maintain and create content aimed at children. Id. Other Channel Owners do the same: for example, Defendant ChuChuTV's channel features cartoons and nursery rhymes. Id. ¶ 101. Defendants Remka, RTR Production, RFR Entertainment, and Pocketwatch together operate a channel, Ryan's World, featuring a nine-year-old boy unboxing toys and other children's products. Id. ¶ 106. This is the second-most popular YouTube channel, with approximately 22.5 million subscribers and over 33 billion views. Id. ¶ 107. Plaintiffs detail the child-aimed content of the other Channel Owner Defendants as well. Id. ¶¶ 112-13; 119, 122, 126, 130-31.

Google and the Channel Owners generate revenue from the YouTube platform through advertising, with Google placing ads on the channels and keeping 45% of the ad revenue. 3AC ¶ 5. The Channel Owners retain 55% of the ad revenue. Id. Plaintiffs allege that Google, with the authorization and consent of the channel owners, impermissibly "knowingly and purposefully tracked, profiled, and targeted minors on the YouTube Platform for advertising revenue." Id. ¶ 81. Plaintiffs allege that Google tracked Plaintiffs’ personal data and information, such as internet protocol addresses and device serial numbers, and that allowed Google to develop profiles of individuals over time by tracking their activities across multiple websites. Id. ¶ 9. While Google maintained in the YouTube terms of service and the Google Privacy Policy that the YouTube Platform was not for children under thirteen, id. at ¶ 85, the Channel Owners intentionally created content aimed at children under thirteen so that Google could target and track young children for ad revenue, id. ¶ 99.

Through COPPA, Congress has regulated the amount of data Google is legally able to collect from children without parental consent. TAC ¶ 72. COPPA provides, in pertinent part, that,

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). TAC ¶ 72. COPPA applies to any operator of a commercial website or online service directed to children under thirteen years of age that collects, uses, and/or discloses personal information from children. Id. ¶ 73. The Federal Trade Commission ("FTC") has interpreted COPPA's definition of "website or online service" to include individual channels on a general audience platform—according to the FTC, "content creators and channel owners" are both "standalone ‘operators’ under COPPA, subject to strict liability for COPPA violations." Id. ; Statement of Joseph J. Simons & Christine S. Wilson, Federal Trade Commission, Regarding FTC and People of the State of New York v. Google LLC and YouTube, LLC (Sept. 4, 2019), https://www.ftc.gov/system/files/documents/public_statements/1542922/simons_wilson_google_youtube_statement.pdf. The FTC also considers third parties with actual knowledge that they are collecting personal information from users of a child-directed site or service as operators under COPPA. Id. ¶ 73.

In order to determine whether a website or online service is "directed to children" the FTC is to:

[C]onsider [the website's or online service's] subject matter, visual content, use of animated characters or child-oriented activities and incentives, music or other audio content, age of models, presence of child celebrities or celebrities who appeal to children, language or other characteristics of the Web site or online service, as well as whether advertising promoting or appearing on the Web site or online service is directed to children.

16 CFR § 312.2. TAC ¶ 74. COPPA defines a "child" as an individual under the age of thirteen. 15 U.S.C. § 6501(a). TAC ¶ 76. The FTC regulations require an operator to disclose information collection practices and ...