Over the weekend, Google LLC once again asked the San Jose, California federal court presiding over a putative data use class action to toss it for good.
The suit alleges that Google’s surreptitious use of Android OS users’ cellular data to communicate with Google servers at times when users are not “actively” engaged with their devices amounts to theft. Under conversion and quantum meruit theories of liability, the plaintiffs argue that Google receives a benefit from its passive data transfer practices which also deprives the plaintiffs of the unfettered right to use the cellular networks they subscribe to and pay for.
Previously, the court dismissed the plaintiffs’ complaint for failure to establish a property interest in their cellular data allowances. Specifically, the ruling said that the plaintiffs did not show that allowances were personal property capable of exclusive possession or control, an element requisite to a properly laid conversion claim.
Google’s motion argues that the Android users’ amended filing fares no better than their last, highlighting the court’s own skepticism that revision could cure its deficiencies. The defendant doubles down on the argument that the plaintiffs “do not have a personal property interest in their cellular data allowances, which are contractual rights to receive a service that is not exclusive to any one user.”
The company says that the plaintiffs produce no new factual allegations to support that conclusion and instead proffer “cosmetic revisions,” new language describing their purported property interest, and “the introduction of a new Plaintiff who has a pay-per-gigabyte plan.” However, none of these rectify the failed legal arguments the plaintiffs made when opposing Google’s first dismissal bid, the filing contends.
As a corollary, the quantum meritum claim suffers from the similar flaws because it is based on the same facts and seeks the same recovery, Google argues. The motion urges the court not to consider it on its own because the plaintiffs fail to meaningfully distinguish it in their latest pleading.
Google concludes that the court “should not grant Plaintiffs a third bite at the apple and should dismiss their [complaint] with prejudice.” The motion hearing is scheduled for March 29.
The Android OS users are represented by McManis Faulkner, Bartlit Beck LLP, and Korein Tillery and Google by Cooley LLP.
