Consumers File Amended Complaint After October Dismissal in Google ‘Passive Data Transfer’ Class Action

A revised pleading filed in the Northern District of California against Google LLC says that phone users who connect to the internet with cellular data using the Android operating system are unwittingly conferring a benefit on Google that the company is not owed. The new complaint asserts that Google LLC receives a valuable benefit from passive transfers of data, those that occur even while an individual is not actually using their phone, and deprives users’ of the right to utilize their cellular carriers’ networks as they see fit.

Previously, Magistrate Judge Virginia K. DeMarchi dismissed the class action for failure to show that the plaintiffs had a property interest in their cellular data allowances. Monday’s revised complaint states the same claims for relief, conversion and quantum meruit.

As to the conversion claim, the court’s dismissal order reasoned that the plaintiffs fell short of demonstrating that their cellular data allowances were “‘personal property’ capable of exclusive possession or control that properly may support a claim for conversion.” As to the quantum meruit claim, Judge DeMarchi ruled that it was premised on the same underlying facts and failed as a derivative cause of action.

This time, the 10-page longer complaint addresses the court’s previously articulated concerns, stating,” [i]f users’ cellular data is not recognized as a convertible property interest under California law, then it must be a service that is subject to a quantum meruit claim for misappropriation.”

The complaint now lays out the theory that if, for example, Google’s alleged passive data transfer eats into 8 gigabytes of a user’s monthly plan, that benefit viewed as a contractual right to a service rather than property unjustly enriches Google at the user’s expense, causing the user to incur a loss equal to the market value of the service that was misappropriated. “That is the essence of quantum meruit: damages for unpaid services determined by the market rate,” the complaint says.

The filing now states the claims in reverse, quantum meruit first and conversion second. The complaint also recognizes that consumers with unlimited data plans may not pay any additional costs, but nevertheless, does not exclude them from the proposed class, which is nationwide but excludes California residents.

The plaintiffs are represented by McManis Faulkner, Bartlit Beck LLP, and Korein Tillery. Google is represented by Cooley LLP.