A California Superior Court recently certified a putative class action of California residents “who have used mobile devices running the Android operating system to access the internet through cellular data plans provided by mobile carriers.” See Order Concerning: (1) The Parties’ Expert Exclusion Motions; and (2) Plaintiffs’ Class Certification Motion, Csupo, et al. v. Alphabet, Inc., 19CV352557 (Super. Ct. Santa Clara Oct. 26, 2023).

Plaintiffs alleged, under theories of conversion and quantum meruit, that Alphabet, Inc. (alternatively, “Google”) misappropriated allowances of cellular data without permission through “passive transfers.” Plaintiffs further alleged that these transfers occurred even when there was no direct engagement with Google’s products or services.

Noting that “[t]he certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious,” the court concluded that plaintiffs had satisfied the requirements for class certification. Notably, the court held that common legal and factual issues predominated since the types of data transfers at issue “affect[ed] all or virtually all Android users.” In doing so, the court rejected Google’s arguments that the harm caused to each individual by the data transfers, as well inquiries regarding consent and damages, all required individualized determinations. 

First, the court decided that any data throttling or overages resulting from passive transfers, which presumably varied by class member, did not defeat predominance. The court held that plaintiffs “rel[ied] solely on Google’s misappropriation of cellular data to show harm.” The actual effect of the passive transfers was considered irrelevant for this inquiry.

Second, the court rejected the notion that determinations of implied or express consent would defeat predominance. While the court conceded that implied consent could require individualized determinations, it concluded that Google had failed to demonstrate that there were enough class members that (1) “knew all relevant, material facts” and (2) “tacitly consented” to render certification inappropriate. In reaching that decision, the court found the survey data of Google’s expert, as well as Google’s theories of “continued phone use” and “exposure to newspaper or Internet articles,” to be insufficient grounding for a finding of implied consent. Regarding express consent, the court held that class treatment was appropriate because the terms of use did not vary materially across the class.

Finally, the court found that the plaintiffs’ expert evidence, which purported to show the fair market value of the misappropriated data, was sufficient to establish a classwide model for damages calculations.