Judge challenges push for class decertification, disgorgement in Google privacy suit

SAN FRANCISCO (CN) — A federal judge on Wednesday told parties involved in a Google privacy lawsuit that he was skeptical of multiple post-trial motions following a jury’s decision finding the tech giant collected users’ data even after they disabled such tracking.

Lead plaintiff Anibal Rodriguez sued Google in July 2020, claiming the company harvests app data despite telling users they can disable such tracking. His claims focused on the privacy settings “Web & App Activity” and a sub-setting “supplemental Web & App Activity,” as well as the California Comprehensive Computer Data Access and Fraud Act.

A jury found in September that Google violated users’ privacy by collecting their data even after they opted out of app activity tracking, awarding a class of more than 100 million users more than $425 million in compensatory damages.

However, the jury also found that Google did not violate the California Comprehensive Computer Data Access and Fraud Act and declined to award any additional damages.

In a hearing over Google’s motion to decertify the class and the plaintiff’s motion for a permanent injunction and disgorgement of profits, Google told U.S. District Court Judge Richard Seeborg the class should be decertified and the jury’s verdict vacated because there is no class-wide consensus of whether Google’s conduct was highly offensive.

Google cited testimony from Rodriguez, who testified that he was okay with Target selling his data to third parties, including Google Analytics.

“Class certification rises and falls on Rodriguez giving opposite testimony. It has to be not okay in all contexts. The fact that it varies based on the app, based on the data, is exactly why class certification should be denied,” Jonathan Patchen of Cooley, an attorney for Google, said.

In contrast, David Boies of Boies Schiller and Flexner, an attorney for the plaintiffs, told the Barack Obama appointee that Google’s highly offensive conduct was not that it was collecting users’ data, but the company’s misrepresentation that users could disable data tracking. He added that Rodriguez testified Target had told him about their data practices, and he agreed.

“Google lied to me, and that is what was highly offensive,” Boies said, citing Rodriguez’s testimony. “Google gave me a choice, and when I found out it was not true, I was pissed off.”

Seeborg called Google’s argument “cherry-picked,” adding that he believed Rodriguez was offended by Google’s actions. He also said the jury heard all the testimony and made its decision that Google’s conduct was highly offensive.

The judge additionally said he was unsure about the plaintiff’s motion for a permanent injunction and disgorgement, saying Google had already fixed the language at issue and that the jury “got it right” in terms of equitable relief for the class.

“As long as the users know what Google intends to do, that is pretty much what the problem was. I don’t see the need for changes as long as there is disclosure to Google users as to what Google intends to do,” Seeborg said.

Boies argued the new language that Google “can collect” data when users opt out is not enough. He asked the court to order Google to get rid of the opt-out button entirely or make it explicit that they collect data even when users opt out.

“They could have said if SWAA is off, we will still collect and save this information,” he said, adding, “They could say this very simply, clearly, they haven’t done it, they want people to think they still have privacy.”

Seeborg questioned Google on why it added the conditional language, rather than stating explicitly what it was doing.

Simona Agnolucci of Cooley, an attorney for Google, said the conditional phrasing is more accurate because some users may not have their data collected, so language stating that all users’ data is collected would be incorrect.

Agnolucci further said the plaintiff’s request to stop Google from data collection altogether and delete all SWAA-off data was unreasonable because the company has since fixed the disclosure issue and compensated users for their data with the damages awarded by the jury.

“All of these requests for relief have nothing to do with disclosure. That is what we addressed, and that is what we fixed. We compensated the class for their data. There is no forward-looking, ongoing harm,” she said.

As for the plaintiff’s request for disgorgement, Seeborg said disgorgement cannot be a way to make up the difference between what the plaintiffs were asking for in damages and what the jury awarded.

“You asked for disgorgement under all three claims submitted to the jury. The jury considered that … they awarded $400 million. They made a determination about disgorgement and whether there was unjust enrichment in terms of assets,” he said.

Boies argued Seeborg needed to look at the claims independently.

“I am asking the court to do something contrary to the jury verdict. Look at the evidence, you have to see that they made a lot of profits from this,” he said.

Seeborg did not indicate when he would release a decision.

Representatives for either party did not immediately respond to a request for comment.

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