SAN JOSE, Calif. (CN) — A federal judge said that it may be too late for Google to compel some members of a class to arbitrate a case over the listening "ears" of Google Assistant.
In a 2019 complaint, class members claimed the Google Assistant AI surreptitiously listened to their conversations for the purpose of targeted advertising. In 2021, U.S. District Judge Beth Labson Freeman ruled Google Assistant users have a reasonable expectation of privacy that may be violated when conversations that take place when they are near to the Google Assistant are recorded and used for the purpose of targeted advertising.
In a motion to compel hearing Thursday morning, Google attorney Erin Earl said many absent members of the class agreed to have any claims resolved by binding arbitration when they set up their Google devices. Rather than seeking to make those members arbitrate their claims, however, Google wants them to be excluded from the scope of any certified class.
“The relief that’s being requested is the exclusion from the purchaser class of those individuals who agreed to one of the two arbitration agreements,” Earl said.
Freeman called it “troubling” that Google waited so long to attempt to compel arbitration. She said Google could have filed a motion to compel arbitration in January 2022 but instead waited eight months, until after discovery, to even approach the issue of compelling arbitration.
“You raise the issue in the opposition to class cert. And then you have this full-throated motion for summary judgment that would affect the rights of the absent class members,” Freeman said.
Earl replied that Google did not file the motion sooner because a class was not certified until December 2022.
“Our understanding had been that Google could not have moved to compel arbitration before any class certified as to absent class members who are not yet, you know, participants in the action,” Earl replied.
Earl said the Google sales terms and device arbitration agreements are valid and enforceable agreements to arbitrate that cover the breach of contract and unfair competition claims of the purchaser class.
“Therefore, we would argue that there’s been no waiver and those agreements should be enforced,” Earl said.
Freeman, in the order for class certification, ruled that there was no waiver. “However, I think the briefing on that issue was scant. I am going to take a new look at it,” Freeman said.
Class attorney Margaret MacLean said Google had the ability to check named plaintiffs' arbitration agreements in February 2020 but failed to do so, and that Google waived its right to arbitrate by delaying so long.
“Google has not just sought repeated judicial resolution of the merits of its claim, but also expressly stated that it did not intend to arbitrate and plaintiffs have justly relied on that. And it’s now simply too late,” MacLean said.
She said there was “absolutely no reason” Google wasn’t aware it could have compelled arbitration at that time.
“Perhaps their motion to compel arbitration may or may not have been ripe until later. It doesn’t mean they weren’t capable of waiving it at an earlier time,” MacLean said.
Freeman called the case a “very close call.”
“In the event that Google is successful here, I’m not compelling anybody to arbitration, and each of the unnamed class members, if they were cut loose from the class, would each individually have the right to make the same arguments on their own behalf that arbitration doesn’t apply,” Freeman said.
However, Freeman said that she does not have the power alone to modify the class definition and would need some type of mechanism to make any modification.
“I hate to reopen or reconsider the class certification. That seems to be a Pandora’s box,” she said.
Because of the slow pace of the case, Freeman promised to expedite her order.
“We need to move this case along, so I’m going to try and get his order out,” she said.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
