Liability theories articulated by plaintiffs bringing a class action lawsuit against Google for conversion and quantum meruit based on “passive” data transfers made by Google on its Android operating system have been dismissed in a opinion returned last week. Magistrate Judge Virginia K. DeMarchi vetoed the lawsuit once and for all after granting limited permission to amend following her initial dismissal ruling.
The case alleges that passive data transfers are made between smartphones to communicate with Google “without the plaintiffs’ knowledge or consent, and at times when their mobile devices are idle, immobile, undamaged, and with all apps closed”, according to the opinion. The plaintiffs claimed that Google’s covert use of the data constituted theft and sought to certify a nationwide class of Android phone users who access the Internet through cellular data networks operated by cell phone carriers.
The latest dismissal order, issued a year ago, sided with Google in finding that the plaintiffs had not alleged harm. Secondarily, the court denied the conversion request, finding that the plaintiffs had not alleged facts demonstrating that their “cellular data allowances” were personal property that could be owned or controlled exclusively. Additionally, the quantum meruit claim fell as a derivative of the conversion claim.
This time, the court highlighted a new basis for the conversion claim, plaintiffs’ alleged ownership of “cellular data,” rather than the previously alleged “cellular data allowances.” The plaintiffs argued that cellular data is convertible property because “like electricity or water, cellular data can be owned on a proprietary basis.”
Yet Judge DeMarchi still found that definition missing because the nature of their alleged proprietary interest “continues to be based on their contractual right of access to a service measured in bytes of data”, which are not subject to conversion.
The court’s decision as to injury also remained unchanged. The amended complaint still does not allege facts of harm such as “any complainant had to pay more money for data or suffered degradation of service due to Google’s alleged passive data transfers”, according to the opinion. .
Judge DeMarchi’s analysis of the quantum meruit claim led her to agree with Google that the alleged injuries fall outside the scope of the law, which involves a promise to pay for services known not to be performed. free. The court concluded that the “plaintiffs did not plead facts showing that they provided a service to Google in the sense contemplated by a theory of quantum meruit”.