No More Patience for Google Users’ Suit

     SAN JOSE (CN) – A federal judge Wednesday dismissed for the fourth time a class action accusing Google of disclosing customers’ personal information to third parties after they downloaded or purchased apps.
     After three dismissals in three years, U.S. Magistrate Judge Paul Grewal clearly had exhausted his patience with the plaintiffs.
     He began his order: “You might think that after three years of complaints, motions to dismiss, orders on motions to dismiss, leave to amend, amended complaints and more, at least the fundamental question of plaintiffs’ Article III standing to pursue this suit would be settled. You might think that, but you would be wrong.”
     Fourteen pages later, he concluded: “Google’s fourth motion to dismiss is GRANTED, without further leave to amend. Plaintiffs have amended their complaint no less than four times, and given that discovery is now closed, any further amendment introducing yet another theory of injury at this late date would be unfairly prejudicial to Google.” (Footnotes omitted.)
     The lawsuit, consolidated from actions across the country, came after Google updated its privacy policy on March 1, 2012, to permit commingling of user data across different Google products, such as Gmail and YouTube.
     Grewal previously rejected allegations that Google’s actions violated its prior policies and consumers’ privacy rights. He found that the users did not show concrete economic harm or common law violations.
     On Google’s third motion to dismiss, Grewal ruled that the users could proceed only on breach of contract and unfair competition claims brought by the “app disclosure subclass.”
     The subclass claimed that its members entered into a contract with Google when they registered for an Android Market/Google Play account and that Google breached the contract by disclosing data to third parties after every download or purchase of an app.
     The users also said that Google’s repeated transmission of personal information from Android devices to the developers increased their phones’ battery and bandwidth consumption, costing them money.
     Grewal granted the users’ request to file another amended complaint , which ended up being their downfall.
     “Plaintiffs managed something somewhat unusual: they pled themselves out of a case,” the judge wrote.
     He found the users failed to show that they suffered a concrete injury traceable to Google that could be redressed by the court. They failed to show injury “because they no longer allege that the battery-and-bandwidth-using transmission containing personal information ever occurs from plaintiffs’ phones. Plaintiffs also do not allege that any battery-and-bandwidth-using transmission ever went to a third party. The app purchase process involves transmissions only to or from Google” Grewal said. Although users said there was time where developers could have looked up the record of a particular transaction on a Google server and access the user’s email address, the risk of disclosure is not an Article III injury-in-fact. Nor did users did show they suffered economic harm resulting from Google’s providing third parties with access to their information.
     “Plaintiffs plead neither the existence of a market for their email addresses and names nor any impairment of their ability to participate in that market. Indeed, the named plaintiffs freely publish their names and email addresses through their work websites. If disclosure did occur, then, it would not constitute injury,” Grewal wrote.
     Although purchasing and downloading an app from Google Play may mean transmissions between the user’s device and Google’s servers that use battery power, plaintiffs do not allege that those transmissions contain personal information.
     “No past or future change to merchant queries or receipt of information would alter the battery or bandwidth consumed in purchasing an app. Google no longer makes names and email addresses visible in response to Wallet or Play merchant queries, nor could there be any claim that the amount of battery power used in purchasing an App changed one iota as a result,” Grewal said.
     Even if he ordered Google to stop making any transaction data whatsoever available, this would not change the battery and bandwidth use of the purchase process, the judge said.
     “Because injury-in-fact is now insufficiently alleged, especially as plaintiffs claim injury without alleging any actual disclosure to third parties from plaintiffs’ own devices, the court grants Google’s motion to dismiss, without further leave to amend.”
     Attorneys for both sides did not immediately respond to requests for comment.

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