On Friday, the Ninth Circuit Court of Appeals issued a notice of appeal from Android users challenging Google’s alleged collection of data regarding third-party apps in the case of Hammerling, et al v. Google, LLC. The consumers appealed the Northern District of California’s December 1 order dismissing the lawsuit.
On September 9, 2022, Google filed a motion to dismiss the plaintiffs’ amended complaint. The court states that this is Google’s second motion to dismiss, with the court granting the first dismissal while allowing the plaintiffs to amend their complaint.
According to the court order, the plaintiffs again allege in the amended complaint that Google secretly used consumers’ Android smartphones to collect data regarding their use of third-party apps. The plaintiffs argue that the practice provides Google with highly personal information about consumers in order to gain a competitive advantage.
In the amended complaint, the plaintiffs realleged the ten claims the court previously dismissed, including common law intrusion, breach of contract and implied contract, unjust enrichment and invasion of privacy under the California Constitution, along with violations of the California Unfair Competition Law, the California Consumers Legal Remedies Act and California’s Invasion of Privacy Act.
In the order, the court states that the plaintiffs failed to cure the deficiencies in their initial complaint and it dismissed all of their claims with prejudice. Regarding the plaintiffs’ privacy claims the court stated the plaintiffs failed to plead facts showing the invasion of privacy was “highly offensive” or that Google was able to learn the contents contained in the third-party apps. For the contract claims, the court held the plaintiffs failed to allege a promise that Google had breached and that they cannot allege an implied contract where an express contract covering the same subject matter already exists. Finally, the court also found that the California Unfair Competition Law claim fails because the plaintiffs failed to show a fraud, misrepresentation or omission Google was required to report under the Act.
The plaintiffs timely challenged the court’s order to the Ninth Circuit and their opening brief is due on April 10, 2023. The plaintiffs are represented by Schubert Jonckheer & Kolbe and Lowey Dannenberg, and Google is represented by Keker, Van Nest & Peters LLP.
