NDCA Court Dismisses Google Cellular Data Collection Case

Magistrate Judge Virginia K. DeMarchi dismissed a class action filed against Google LLC based on alleged “passive” data transfers performed by Google over its Android operating system without mobile device users’ consent. On Oct. 1, the court ruled that the plaintiffs’ conversion and quantum meruit claims did not pass muster because the consumers failed to establish a property interest in their cellular data allowances.

The November 2020 suit claims that Google gathers vast amounts of information about Android operating system users in secret, even when devices are seemingly dormant and certain settings are disabled. The plaintiffs contend that these “passive data transfers” deprive them of data they paid for, yet benefit Google’s product development and targeted advertising business. 

In March, the plaintiffs opposed Google’s motion to dismiss on grounds that they had constitutional standing and stated a claim for relief. In last week’s opinion, the court first determined that Article III standing “turns on the parties’ fundamental disagreement about whether plaintiffs’ cellular data allowances properly are the subject of a conversion claim or a claim for quantum meruit, and that the questions of standing and failure to state a claim are intertwined.”

As to the conversion claim, Judge DeMarchi considered whether “cellular service subscribers have a property interest in their cellular data allowances,” noting that neither of the parties cited, nor did the court find cases addressing the issue. The plaintiffs analogized several decisions they argued were factually similar, but the court disagreed. “In sum, plaintiffs have not alleged facts demonstrating that their cellular data allowances are ‘personal property’ capable of exclusive possession or control that properly may support a claim for conversion,” the court said.

The court found that the quantum meruit claim was premised on all the same facts as the conversion claim and requested the same relief. As such, it was simply a derivative of the theft claim and failed for the same reason. 

Finally, Judge DeMarchi considered whether to allow the plaintiffs to replead their complaint after expressing doubt that they could allege a plausible claim for conversion. Nevertheless, the court permitted them to, as well as a claim for quantum meruit, though on narrowed grounds.

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