Consumers Seek Leave to Amend Class Definition in Google Online Tracking Suit

A motion filed late last week by the consumer plaintiffs taking on Google over its alleged unwanted collection of their data has asked for leave to amend the operative complaint for the sole purpose of expanding the proposed class definitions. The motion says that unless permitted to expand the existing definition, “Google’s liability would not correspond with the evidence that discovery has yielded.”

The suit dates to July 2020, when the plaintiffs argued that Google collects and amalgamates data from apps that use Google services and sells that information to consumer advertising businesses. The lawsuit claims that Google benefits from the collection of user data despite the fact that users turned off Google’s “Web & App Activity” control (WAA). 

After several motions to dismiss, three causes of action remain standing under California’s Computer Data Access and Fraud Act (CDAFA) and the laws of invasion of privacy and intrusion upon seclusion. In upholding those claims, Judge Richard Seeborg found that Google set an expectation that it would not save the plaintiffs’ activity on apps that use Google services’ unless they turned WAA on.

Since discovery began in January 2022, the plaintiffs claim they have unearthed new information that expands the scope of Google’s liability. In support, the motion for leave to file an amended complaint argues that documentary and testimonial evidence has substantiated the plaintiffs’ suspicions that Google’s misconduct extends beyond Google Analytics for Firebase.

According to the motion, Google employees privately recognize this but do not publicly disclose it. The filing also ventures that “[d]espite Google’s steadfast efforts to limit discovery to Google Analytics for Firebase, Plaintiffs have uncovered the enormous base that lies beneath— that the WAA ‘control’ is entirely illusory.”

The proposed amendments seek to include not only users who turned off WAA, but also users who turned off supplemental WAA, in addition to other redacted changes. The plaintiffs claim Google will not suffer prejudice as a result of these amendments, in part because it will require no additional discovery.

The class certification hearing is scheduled for May 2023.

The plaintiffs are represented by Boies Schiller Flexner LLP, Morgan & Morgan P.A., and Susman Godfrey L.L.P and Google by Willkie Farr & Gallagher LLP.