A judge has pulled the plug once again - for now - on a class action lawsuit seeking a big payday from Google over claims the company wrongly collected the information of children under the age of 13 when using YouTube.
In the ruling, the judge said she refused to declare the mere collection of user information using tracking cookies - a widespread, common method used by companies to improve and better target their online offerings - should be allowed to trigger lawsuits.
And she questioned how the plaintiffs could prove they should be owed money from the collection of the young users' information, noting the plaintiffs, in part, claim Google's information gleaning practices rob them of the opportunity to sell the information themselves.
"To be sure, Plaintiffs do allege that a market for such information exists, but the Court cannot reasonably infer from the existence of such a market that a consumer (and a child under the age of 13, no less) could realistically participate in that market," the judge wrote.
On July 1, federal Magistrate Judge Susan Van Keulen, in the Northern District of California, dismissed for a sixth time a class action lawsuit accusing Google, through YouTube, of violating childrens' privacy rights under California law and the laws of more than a dozen other states.
The lawsuit dates to 2019, when attorneys from the firms of Pritzker Levine LLP, of Emeryville, filed the complaint in San Jose federal court. Those attorneys were later joined by lawyers from the firm of Silver Golub & Teitell LLP, of Stamford, Connecticut.
The lawsuit chiefly names Google as a defendant. But other defendants identified in the complaint include toymakers, television networks and others who create and promote content to YouTube aimed at children under the age of 13.
Those additional defendants include Cartoon Network, Dreamworks, Hasbro and Mattel.
The lawsuit asserts those defendants allegedly violated the various state laws by collecting information about young users to better target advertising and programming to grab and hold their attention.
The plaintiffs' case has thus far survived multiple seemingly successful efforts to end the action.
Most significantly, a federal judge ruled that the lawsuit should not be allowed, because the judge found it merely uses state law claims to sidestep the federal Children's Online Privacy Protection Act (COPPA). That law generally bars operators of websites from collecting information from users who are under the age of 13 without their parents' consent. However, the law also does not allow individuals to file lawsuits for alleged COPPA violations. Instead, only federal and state regulators are authorized to bring enforcement actions against online service providers, like Google, over alleged violations of the law.
The federal government and various states have already settled such enforcement actions against Google in connection with claims the company violated COPPA.
Afederal judge ruled COPPA also should short-circuit the plaintiffs' attempts to sue under similar state law claims, and ordered the case dismissed.
On appeal, however, the U.S. Ninth Circuit Court of Appeals disagreed, and reinstated the case.
In all, the lawsuit now has been dismissed six times, and each time it has either been revived on appeal or the plaintiffs have been given another opportunity to amend the complaint to fix the deficiencies identified by the judges.
In her latest ruling, Judge Van Keulen said she would give plaintiffs a seventh try to advance their case. The judge said her ruling is the first to address the case on its merits, rather than procedural questions, such as whether the lawsuit should even be in court. So, she said, she would give the plaintiffs a limited opportunity to fix their pleadings and try again.
While acknowledging the Ninth Circuit's ruling, Van Keulen indicated the plaintiffs still have a rought legal road ahead for their action.
The judge said the plaintiffs still have work to do to even prove YouTube users have been harmed by what she said amounts to "routine behavior" by a wide range of online services, when the use of tracking "cookies" is a widespread practice already well known by consumers, so cannot be legally classified as "highly offensive."
"Even assuming this information was transmitted without Plaintiffs’ knowledge and consent, a fact disputed by Defendants, such disclosure does not constitute an egregious breach of social norms," the judge said.
"... This is not a case involving secret or deceptive data collection... Nor is this a case wherePlaintiffs browsed the internet using 'incognito mode' or where the misappropriation of data stemmed from a data breach.
"Without any such 'plus factors' to elevate Defendants’ conduct beyond the level of routine commercial behavior, Plaintiffs effectively ask the Court to characterize an entire industry as founded on tortious conduct. The Court cannot sanction that result," the judge said.
The judge said it also doesn't matter that the data collection allegedly targeted children.
"After all, an intrusion into someone’s privacy is an intrusion into someone’s privacy regardless of whether the someone is an adult or a child," Van Keulen said.
She noted the federal and state governments' settlement of COPPA claims against Google will make it difficult for plaintiffs to advance their claims that they are owed court order directing the company to change its YouTube user data collection policies, when the company has already agreed to do so.
And the judge said the plaintiffs haven't demonstrated why they are owed money for the alleged violations.
Plaintiffs alleged the data collection amounted to a loss similar to those experienced by companies whose trade secrets are stolen. But the judge questioned that theory, wondering how such a loss of value matters when the plaintiffs have yet to demonstrate how the parents or their children can capitalize economically from the value of that information, unless the parents somehow intend to sell the information themselves.
In her ruling, the judge agreed to allow the plaintiffs limited opportunity to amend the complaint for a seventh and perhaps the last time, addressing only the legal shortcomings she identified in the ruling.
Plaintiffs are represented by attorneys Jonathan K. Levine, Elizabeth C. Pritzker and Caroline C. Corbitt, of Pritzker Levine; and David S. Golub, Steven L. Bloch and Ian W. Sloss, of Silver Golub & Teitell.
Google is represented in the action by attorneys Edith Ramirez, Adam A. Cooke, Christopher J. Cox and Helen Y. Trac, of the firm of Hogan Lovells US LLP, of Washington, D.C.
Cartoon Network is represented by attorneys Christopher Chorba and Jeremy S. Smith, of the firm of Gibson Dunn & Crutcher, of Los Angeles.
Mattel is represented by attorneys Jonathan H. Blavin, Jordan D. Segall, Nick R. Sidney and Amanda Harris, of Munger Tolles & Olson, of San Francisco.
Dreamworks is represented by attorneys Anna Hsia, Jeffrey Landis and Adya Baker, of Zwillgen Law, of San Francisco.
Hasbro is representedf by attorneys Jeremy S. Goldman and Molly G. Rothschild, of Frankfurt Kurnit Klein & Selz, of Los Angeles.
Pocketwatch Inc. is represented by attorneys David E. Fink and Sarah E. Diamond, of Venable LLP, of Los Angeles.
And Remka Inc and related companies are represented by Michael J. Saltz and Simone E. Poyourow, of Jacobson Russell Saltz Nassiim & De La Torre, of Los Angeles.