Judge denies disgorgement, decertification efforts in Google privacy suit

SAN FRANCISCO (CN) — A federal judge on Friday denied multiple post-trial motions following a jury’s verdict in a case over Google’s privacy practices.

U.S. Chief District Court Judge Richard Seeborg denied both the plaintiff’s motion for a permanent injunction and disgorgement of profits and Google’s motion to decertify the class, describing both efforts as seeking to “augment and upset the verdict in various ways.”

“Both motions are denied. As to the former, plaintiffs have failed to establish prospective irreparable harm, making a permanent injunction inappropriate. They have also failed to show entitlement to disgorgement, both because their legal remedy is adequate and because their estimate of Google’s profits is insufficiently supported,” the Barack Obama appointee wrote in the 19-page order.

“As to the latter, Google’s argument rests on a misapprehension of plaintiffs’ theory of offensiveness—a misapprehension spun up out of a few stray comments made by a single witness. The core of the plaintiffs’ theory is and always has been that Google’s decision to collect certain data after it said it would not was inherently offensive. That theory is perfectly susceptible to collective proof,” he continued.

Lead plaintiff Anibal Rodriguez sued Google in July 2020, saying the company collected app data despite telling users they could disable tracking; the claim focused on “Web & App Activity” and “supplemental Web & App Activity” settings. He also cited the California Comprehensive Computer Data Access and Fraud Act.

In September, a jury found Google violated users’ privacy by continuing to collect data even after they opted out, awarding more than $425 million in compensatory damages to a class of over 100 million users.

The jury, however, found Google did not violate the California fraud act and declined to award additional damages.

After the jury’s decision, plaintiffs sought a permanent injunction and $2.36 billion in disgorgement, a “conservative approximation” of Google’s profits made during the class period. Google countered by asking the court to decertify the class and vacate the verdict.

In his ruling, Seeborg called the plaintiffs’ claims of irreparable harm “misplaced,” finding that Google had updated its privacy disclosures to more accurately reflect its data-collection practices. He said the proposed remedies were “far too broad” and that plaintiffs failed to show they were irreparably harmed.

The judge also criticized both sides as “poor prognosticators” for switching positions on whether the court should determine disgorgement, adding that it should not serve as a fallback when a jury declines to award additional damages.

“Throughout trial, plaintiffs put on evidence quantifying their injury and, during closing statements, asserted they were owed $31.15 billion—more than 13 times the amount they now claim Google made off their data. The jury simply did not buy it. At bottom, the purpose of federal equitable jurisdiction is to act as a gap filler where legal remedies are inadequate, not to give a plaintiff a second bite at the apple,” he said.

As for the decertification motion, Seeborg said there was no reason to overturn the jury’s determinations on the argument that Google’s collection of plaintiffs’ data was highly offensive.

“The core of Plaintiffs’ theory of offensiveness has remained consistent throughout this litigation: Google collected Plaintiffs’ data after it said it would not. The nature of the data collected mattered, but its import could be assessed without delving into the apps that each class member downloaded,” he said.

Representatives for either party did not immediately respond to a request for comment.

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