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In re Google, Inc. Privacy Policy Litig.

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

July 21, 2014

IN RE GOOGLE, INC. PRIVACY POLICY LITIGATION

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Robert B. De Mars, individually and on behalf of all others similarly situated, Lorena Barrios, individually and on behalf of all others similarly situated, Nicholas Anderson, Pedro Marti, Matthew Villani, Scott McCullough, Plaintiffs: Diane Zilka, LEAD ATTORNEY, PRO HAC VICE, Grant and Eisenhofer, Wilmington, DE; James J Sabella, PRO HAC VICE, Grant and Eisenhofer, Wilmington, DE; Kelly A. Noto, LEAD ATTORNEY, PRO HAC VICE, Gardy & Notis LLP, Englewood Cliffs, NJ; Kyle J McGee, LEAD ATTORNEY, PRO HAC VICE, Grant and Eisenhofer P.A., Wilmington, DE; Martin Stuart Bakst, LEAD ATTORNEY, Attorney at Law, Encino, CA; Annick Marie Persinger, Lawrence Timothy Fisher, Bursor & Fisher, P.A., Walnut Creek, CA; James S. Notis, PRO HAC VICE, Gardy & Notis, LLP, Englewood Cliffs, NJ; Jennifer Sarnelli, Mark C. Gardy, Gardy & Notis, LLP, Englewood Cliffs, NJ; Orin Kurtz, Gardy and Notis, LLP, New York, NY; Sarah Nicole Westcot, Bursor and Fisher, P.A., Walnut Creek, CA; Yeremey O. Krivoshey, Bursor Fisher, P.A., Walnut Creek, CA.

For David Nisenbaum, Plaintiff: Diane Zilka, LEAD ATTORNEY, PRO HAC VICE, Grant and Eisenhofer, Wilmington, DE; Kelly A. Noto, LEAD ATTORNEY, PRO HAC VICE, Gardy & Notis LLP, Englewood Cliffs, NJ; Kyle J McGee, LEAD ATTORNEY, PRO HAC VICE, Grant and Eisenhofer P.A., Wilmington, DE; Annick Marie Persinger, Lawrence Timothy Fisher, Bursor & Fisher, P.A., Walnut Creek, CA; Orin Kurtz, Gardy and Notis, LLP, New York, NY; Yeremey O. Krivoshey, Bursor Fisher, P.A., Walnut Creek, CA; Sarah Nicole Westcot, Bursor and Fisher, P.A., Walnut Creek, CA.

For Google, Inc., Defendant: Michael Henry Page, LEAD ATTORNEY, Durie Tangri LLP, San Francisco, CA.

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ORDER GRANTING-IN-PART MOTION TO DISMISS AND GRANTING MOTION TO STRIKE (Re: Docket Nos. 71, 77)

PAUL S. GREWAL, United States Magistrate Judge.

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Over two years ago, Plaintiffs[1] filed this lawsuit against Defendant Google, Inc. for commingling user data across different Google products and disclosing such data to third parties.[2] Since then, the court has twice dismissed Plaintiffs' claims. Google now moves for a third dismissal.

Like Rocky rising from Apollo's uppercut in the 14th round, Plaintiffs' complaint has sustained much damage but just manages to stand. The court GRANTS the motion, but only IN-PART.

I. BACKGROUND[3]

This is a nationwide, putative class action against Google on behalf of all persons and entities in the United States that acquired a Google account between August 19, 2004 and February 29, 2012, and continued to maintain that Google account on or after March 1, 2012, when a new Google privacy policy went into effect. Plaintiffs also bring nationwide class claims against Google on behalf of (a) all persons and entities in the United States that acquired an Android-powered device between May 1, 2010 and February 29, 2012 and switched to a non-Android device on or after March 1, 2012 (the " Android Device Switch Subclass" ); and (b) all persons and entities in the United States that acquired an Android-powered device between August 19, 2004 and the present, and downloaded at least one Android application through the Android Market and/or Google Play (the " Android App Disclosure Subclass" ).[4]

Google is a technology and advertising company that provides free web-based products to billions of consumers around the world. Google can offer its products free of charge due to its primary business model -- advertising. In 2011, Google's revenues were $37.91 billion, approximately 95% of which ($36.53 billion) came from advertising. In 2012, Google's revenues increased to $46.04 billion, approximately 95% of which ($43.69 billion) came from advertising.[5]

In order to accomplish this, Google logs personal identifying information, browsing habits, search queries, responsiveness to ads, demographic information, declared preferences and other information about each consumer that uses its products. Google's Gmail service also scans and discloses to other Google services the contents of Gmail communications. Google uses this information, including the contents of Gmail communications, to place advertisements that are tailored to each consumer while the consumer is using any Google product or browsing third-party sites that have partnered with Google to

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serve targeted ads.[6]

Before March 1, 2012, information collected in one Google product was not automatically commingled with information collected during the consumer's use of other Google products. Google did not, for instance, ordinarily and automatically associate a consumer's Gmail account (and therefore his or her name and identity, his or her private contact list, or the contents of his or her communications) with the consumer's Google search queries or the consumer's use of other Google products like Android, YouTube, Picasa, Voice, Google, Maps, Docs, and Reader.[7]

Google has always maintained a general or default privacy policy purporting to permit Google to " combine the information you submit under your account with information from other services." [8] However, before the introduction of the new privacy policy on March 1, 2012, this statement was qualified, limited, and contradicted in privacy policies associated with specific Google products, including both Gmail and Android-powered devices. The privacy policies associated with Android-powered devices, for example, specified that, although the default terms would generally apply, " [c]ertain applications or features of your Android-powered phone may cause other information [that is, other than certain delimited " usage statistics" ] to be sent to Google but in a fashion that cannot be identified with you personally" and that " [y]our device may send us location information (for example, Cell ID or GPS information) that is not associated with your [Google] Account." These categories of information, and certain other discrete categories of Android user information, identified by the terms of the Android-powered device policy in effect prior to March 1, 2012, could affirmatively not be " combine[d] ... with information from other services." [9]

On March 1, 2012, however, Google replaced those policies with a single, unified policy that allows Google to comingle user data across accounts and disclose it to third-parties for advertising purposes.[10] Plaintiffs, who each either acquired a Google account or purchased an Android-powered ...


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