Opposition to Google’s Motion to Dismiss Filed in Cellular Data Collection Suit

On Monday in the Northern District of California, the plaintiffs in a user data collection putative class action against Google filed their opposition to Google’s motion to dismiss, asking the court to deny Google’s motion.

The plaintiffs, Android mobile device users, sued Google in November 2020 claiming the company surreptitiously used their cellular data to constantly transmit their personal device data even when they were not using their device; Google allegedly used this data for “targeted advertising purposes.”

In the opposition, the plaintiffs alleged that they have established Article III standing, specifically noting that they must allege an injury-in-fact, “by showing that they have a legally protected interest that defendants invaded.” In particular, the plaintiffs cited that “California law protects Plaintiffs’ rights to bytes of cellular data that they purchased,” and alleged that Google breached this protection by consuming bytes purchased by the Plaintiffs without consent. The plaintiffs refuted Google’s assertion that “its unauthorized taking of the Plaintiffs’ bytes is immune from challenge in this Court unless Plaintiffs allege some additional, consequential harm.”

The plaintiffs contended that under California law in order to state a claim for conversion, the plaintiffs must allege: “(1) a personal property right; (2) defendants’ taking of that property without permission; and (3) damages equal to the market value of the property.” The plaintiffs proffered that they have satisfied these requirements through their claim that Google consumed their purchased cellular data without their consent. 

The plaintiffs noted that California conversion law “creates a ‘legally protected interest,’ the invasion of which by Google is an injury-in-fact.” They claimed that Google erroneously argued that “bytes of cellular data are not property capable of conversion.” The plaintiffs also recognized that while bytes of cellular data may be intangible, they are not fictitious, much like electricity and radio waves are “intangible only in the sense that (they are) imperceptible to the human senses.” 

Lastly, the plaintiffs argued that under quantum meruit, Google must “compensate Plaintiffs for the value of benefits that the Defendants unjustly receive at Plaintiffs’ expense,” particularly as it relates to the plaintiffs’ claims that “Google used Plaintiffs’ cellular data to collect the valuable personal information that feeds its surveillance and advertising empire.”

The plaintiffs seek for the court to deny Google’s motion to dismiss. The plaintiffs are represented by McManis Faulkner, Bartlit Beck, and Korein Tillery. Google is represented by Cooley.