546 F.Supp.3d 945
N.D. Cal.2021Background
- Putative consumer class action alleging Google Assistant (on Google-made and third‑party devices) recorded audio without user activation ("false accepts"), stored and used recordings to improve Assistant and target ads.
- Third Consolidated Amended Complaint (3AC) asserts 10 claims (Wiretap Act, SCA, CIPA §632, intrusion upon seclusion, CA constitutional privacy, breach of contract, UCL, CLRA, common‑law fraud, declaratory relief) on behalf of seven named plaintiffs and proposed classes.
- Plaintiffs identified specific alleged non‑activated recordings (in‑home conversations, children’s speech) and instances of subsequent targeted advertising (YouTube, Instagram) tied to those conversations.
- Google moved to dismiss under Fed. R. Civ. P. 12(b)(6); court considered Terms/Privacy Policy and other public materials by incorporation/judicial notice.
- Court applied Twombly/Iqbal pleading standards and Rule 9(b) for fraud; it assessed reasonable expectation of privacy, unlawful interception/disclosure/use, contract interpretation, damages theories, UCL standing, and pleading particularity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs pleaded a reasonable expectation of privacy for Wiretap Act, CIPA §632, intrusion, and CA constitutional privacy claims | Plaintiffs alleged frequent private, in‑home conversations near GAEDs and identified specific non‑activated recorded incidents | Google argued allegations were too vague, especially for mobile devices, and false accepts are rare | Denied as to Galvan, E.G., Kumandan (allegations sufficient to infer interception in private settings); court found expectation of privacy adequately pled |
| Whether Wiretap Act §2511(1)(c)-(d) and SCA unlawful disclosure/use claims (targeted ads) sufficiently pleaded | Plaintiffs point to temporal connection between recorded conversations and later targeted ads (YouTube/Instagram) showing disclosure/use | Google argued no disclosure to third parties, YouTube is not a third party, privacy policy permits use, and many plaintiffs made no targeted‑ad allegations | Mixed: Dismissed without leave for plaintiffs who did not allege targeted ads; Galvan/E.G. unlawful‑disclosure theory relying on YouTube dismissed (YouTube not pled as third party); Kumandan’s allegation re Instagram survives; SCA claims tied to dismissed Wiretap predicates likewise narrowed |
| Whether Plaintiffs plausibly alleged breach of Google TOS/Privacy Policy and damages (benefit‑of‑bargain, privacy harm, disgorgement) | Plaintiffs say Privacy Policy promised limited use/sharing and Google breached by recording/disclosing and changing collection practices; seek expectation damages, privacy harm, and disgorgement | Google contends the Privacy Policy permits collection/use ("voice and audio information when you use audio features"), some cited web FAQs are not part of the contract, and many plaintiffs paid nothing for GAEDs | Partially denied: breach claims based on recording and disclosure may proceed; breach claim premised on unilateral changes to collection disallowed (no contractual promise not to change). Expectation damages allowed for Kumandan, Spurr, Hernandez but not for Galvan, E.G., B.S., Brekhus. Privacy‑harm and disgorgement theories plausibly alleged for remaining plaintiffs |
| Whether CLRA and common‑law fraud claims meet Rule 9(b) particularity | Plaintiffs allege misrepresentations about security/activation scope and intent to mislead about recording triggers (e.g., alarm events) | Google says allegations are vague, scattered, and lack who/what/when/where/how and intent/reliance | Dismissed with leave to amend: claims fail Rule 9(b) particularity and lack facts showing justifiable reliance and fraudulent intent |
| UCL standing and merits (unlawful/unfair prongs) | Plaintiffs assert economic injury via overpayment and property interest in voice recordings (restitution/disgorgement); claim unlawful practices (Wiretap/SCA/CIPA/contract) and unfairness (privacy harms) | Google argues plaintiffs lack economic injury and cannot show recordings are property or that benefits don’t outweigh harm | Mixed: UCL claims dismissed for Galvan, E.G., B.S., Brekhus (no economic injury). Kumandan, Spurr, Hernandez have standing; unlawful prong survives to the extent predicate claims survive; unfair prong survives for those plaintiffs (factual balancing reserved) |
| Declaratory judgment/injunctive relief duplicative | Plaintiffs seek declaration that Google owes duty not to intercept/disclose and injunctive remedies | Google argues duplicative of other claims and unnecessary | Dismissed without leave to amend as duplicative of other remedies under UCL and related claims |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim; courts accept well‑pleaded facts, not conclusions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for Rule 8(a) complaints)
- Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) (12(b)(6) tests legal sufficiency; pleadings construed favorably to nonmovant)
- Vess v. Ciba‑Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) (Rule 9(b) requires who/what/when/where/how for fraud allegations)
- Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) (judicial notice vs. incorporation‑by‑reference doctrines explained)
- United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978) (reasonable expectation of privacy requirement for oral communications)
- Theofel v. Farey‑Jones, 359 F.3d 1066 (9th Cir. 2004) (Stored Communications Act protects stored electronic communications akin to trespass principles)
- Cel‑Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163 (1999) (UCL "unfair" prong—antitrust‑tethered test and limits of the doctrine)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) (UCL standing requires economic injury — lost money or property)
- In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 (9th Cir. 2020) (discusses disgorgement, value of user data, and standing in privacy/data cases)