A Northern District of California court excluded two groups from certified classes alleging privacy violations against Google, finding that individuals who did not set their own privacy settings did not satisfy the predominance requirement of Rule 23(b)(3).

In Rodriguez, et al., v. Google LLC, 2024 WL 1486139 (N.D. Cal. Apr. 5, 2024), plaintiffs had filed a putative class action against Google alleging that their online activities were transmitted to Google even after they turned off certain internet tracking settings, constituting alleged intrusion upon seclusion, invasion of privacy, and violation of the Comprehensive Computer Data Access and Fraud Act (CDAFA). The court had already certified two classes, but during the class notice process a dispute arose over whether two groups of people who had not set their own tracking settings were part of the class definitions: 1) users of accounts created by businesses or organizations for their employees or members; and 2) users of accounts created for children under thirteen by their parents.

Google filed a motion for clarification of the class definition, asking the court to resolve this question. The court found the class definitions unambiguous, and thus improper for a motion for clarification, but instead treated Google’s motion as one to modify the class certification order.  The court excluded both groups from the classes, holding that they did not satisfy the predominance requirement. For the certified classes, “the relevant, uniform conduct … is the proposed class members’ decisions affirmatively to turn off the [tracking] buttons.” Id. at 3. However, individuals in the two excluded groups made no such affirmative decisions, because they had never set their own tracking settings. And without those decisions, these groups lacked the same expectation of privacy shared by the rest of the class members.  The need to individually investigate the excluded groups’ expectations as to the tracking settings “necessarily raises individual questions that make class treatment unmanageable and defeat predominance.” Id. at 4.

However, the court did not exclude the two groups as to the CDAFA claim, because that claim focused on Google’s intent and conduct, rather than that of plaintiffs.

This case is a reminder to parties that the predominance requirement for class certification is not an examination of the underlying merits of the claims, but rather, an efficiency-based focus on whether the key questions relevant to the class can be answered on a class-wide basis.