Calhoun et al. v. Google LLC

Case Name: Calhoun et al. v. Google LLC

Type of Case: Privacy class action

Court: Northern District

Judge(s): U.S. District Judge Yvonne Gonzalez Rogers

Defense Lawyers: Quinn Emanuel Urquhart & Sullivan LLP, Andrew H. Schapiro, Stephen A. Broome, Viola Trebicka, Josef T. Ansorge, Crystal Nix Hines, Jonathan S. Tse, Jomaire A. Crawford, Sara E. Jenkins

Plaintiff Lawyers: Blechmar Fonti & Auld LLP, Lesley E. Weaver, Anne K. Davis, Sandy Gonzalez, Matthew S. Melamed, Angelica M. Ornelas, Joshua D. Samra; DiCello Levitt LLC, David A. Straite, Amy Keller, Adam Prom, Sharon Cruz; Simmons Hanly Conroy LLC, Jason "Jay" Barnes, An Truong, Eric Johnson

To defeat a potential class action against Google on behalf of all U.S. users of its Chrome web browser, the search giant's attorneys from Quinn Emanuel brought in experts to present what U.S. District Judge Yvonne Gonzalez Rogers described as "a tutorial on how the Internet works."

Stephen A. Broome

In a daylong hearing in October, eight experts from the two sides explained "how browsers work and how they request websites," including what proved to be a significant fact in Rogers' ruling: thanks to necessary browser standardization, the same data about Google account holders "were all sent to Google when users visited sites that used Google's services irrespective of the browser being used."

In their class complaint, the plaintiffs alleged that Google violated its express promise not to take users' personal data when they were using the Chrome browser despite their having specifically chosen not to sync their Chrome accounts with their Google accounts. Calhoun v. Google LLC, 4:20-cv-05146 (N.D. Cal., filed July 27, 2020).

Viola Trebicka

In fact, Google "intentionally and unlawfully causes Chrome to record and send users' personal information to Google regardless of whether a user elects to sync or even has a Google account," the complaint states. That personal information includes IP addresses, browsing history and "unique, persistent cookie identifiers."

The main question was whether Chrome users agreed to have their information collected and used. Rogers examined the texts of four online agreements presented to users, including Chrome's specific sync agreement and Google's overarching general terms of service agreement.

The plaintiffs contended the controlling agreement for Chrome users is the Chrome Privacy Notice and its sync provision. But Google's attorneys countered that the information targeted in the complaint is collected no matter which browser someone uses. The data collection is "browser-agnostic," and so are the broad terms of service controls, they said.

Jomaire A. Crawford

The experts investigated what data Google had collected from the six named plaintiffs and what agreements they had accepted. They agreed with Google's assertions that the same information had been collected when users browsed with Edge, Firefox or Safari as well as Chrome.

Since there was no dispute, Rogers found that the company's general policies applied. And she found that a reasonable person reading those policies would understand that the company collects users' data, uses it for advertising purposes and combines and links it across sites and services.

For their summary judgment motion, the plaintiffs shifted from complaining about "the type or nature of the data" to instead "the quantity and its use." The judge found all six of their arguments unpersuasive.

"Thus, based on the record, the Court concludes, as a matter of law that Google adequately disclosed, and plaintiffs consented to, the collection of the at-issue data," she wrote.

David Straite, the co-lead counsel for the plaintiffs, said his side was unable to comment on the case. Google's attorneys also did not discuss the judge's ruling or the case. The case is now on appeal.

-- Don DeBenedictis