Court Ends Android Users’ Passive Data Transfer Case Against Google for Good

The theories of liability articulated by the plaintiffs litigating a class action against Google for conversion and quantum meruit based on “passive” data transfers performed by Google over its Android operating system were rejected in an opinion rendered last week. Magistrate Judge Virginia K. DeMarchi vetoed the suit once and for all after giving limited leave to amend in the wake of her first dismissal decision.

The case alleges that passive data transfers are made between smartphones to communicate with Google “without plaintiffs’ knowledge or consent, and at times when their mobile devices are idle, stationary, untouched and with all applications closed,” the opinion recounted. The plaintiffs claimed that Google’s covert data usage amounted to theft, and sought to certify a nationwide class of Android phone users who access the internet through cellular data networks operated by mobile carriers.

The last dismissal order, issued a year ago, sided with Google in finding that the plaintiffs failed to allege injury. Secondarily, the court dismissed the conversion claim, finding that plaintiffs did not allege facts demonstrating that their “cellular data allowances” were personal property capable of exclusive possession or control. Too, the quantum meruit claim fell as derivative of the conversion claim.

This time, the court highlighted a new basis of the conversion claim, the plaintiffs’ purported property right in “cellular data,” rather than the previously alleged “cellular data allowances.” The complainants contended that cellular data is convertible property because “just like electricity or water, cellular data is capable of exclusive possession.” 

Yet Judge DeMarchi still found this definition lacking as the nature of their alleged property interest “continues to rest on their contractual right of access to a service that is measured in bytes of data,” which are not capable of conversion.

The court’s holding as to injury remained unchanged, too. The amended complaint still did not allege facts of injury such as “any plaintiff had to pay more money for data or suffered a degradation in service because of Google’s alleged passive data transfers,” the opinion said

Judge DeMarchi’s analysis of the quantum meruit claim led her to agree with Google that the injuries complained of do not fit the law’s framework, which implies a promise to pay for services known not to be gratuitously rendered. The court concluded that the “plaintiffs have not pled facts demonstrating that they provided a service to Google in the sense contemplated by a quantum meruit theory.”

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