DiCello Levitt Announces Landmark Victory for Chrome Users in the Ninth Circuit With Ruling That May Have “Reverberations Across Privacy Litigation”

In a landmark victory for Chrome users, a unanimous Ninth Circuit panel reinstated a nationwide data privacy class action that challenges Google’s intentional collection of Chrome users’ personal information, including sensitive web browsing information, without their consent.

In an August 20 opinion written by Judge Milan D. Smith Jr., the U.S. Court of Appeals for the Ninth Circuit reversed the Northern District of California’s summary judgment in favor of Google, finding that “the district court failed to apply the correct standard” by not considering whether a “reasonable user” would have consented to Google’s data collection practices.

This decision sends the case back to the district court for trial, pending plaintiff class certification, and requires a jury to determine how a reasonable Chrome user with ordinary computer skills would have understood Google’s disclosures and promises.

The lawsuit was first filed by attorneys at DiCello Levitt and co-counsel Simmons Hanly and Bleichmar Fonti in July 2020, following an expert inspection of HTTP traffic on Chrome web browsers. The inspection revealed that Chrome sent vast amounts of users’ personal information to Google regardless of whether those users chose to sync their browsers with their Google accounts. Google had promised, however, that Chrome would not send personal information to Google unless the Chrome user elected to sync the browser with a Google account.

Google did not deny the results of the expert investigation but argued that Google’s Chrome-specific privacy promises did not apply when the company-wide privacy policy generally describes data collection when visiting Google partner websites. Google argued that the general policy should govern any browser-agnostic data collection—i.e., that the Chrome-specific privacy promises should only apply to Chrome functions that are unique to Chrome.

The Ninth Circuit fully rejected Google’s argument, finding that Google’s disclosures and promises must be interpreted based on how a “reasonable user” with ordinary computer skills would interpret them, instead of focusing on “browser agnosticism,” a standard that required more than seven hours of expert testimony in the district court to figure out. But as the Ninth Circuit wrote, “browser agnosticism is irrelevant because nothing in Google’s disclosures is tied to what other browsers do.”

Immediately following the ruling, reporters Xu Yuan and Mike Swift of MLex wrote that the decision is “likely to reverberate widely” and “to have significant implications for ongoing litigation.” The authors also noted that the court’s adoption of an “objective standard” will be relevant to class certification.

Google Chrome users are represented by David Straite and Adam Prom, assisted by Amy Keller and Corban Rhodes, of DiCello Levitt LLP; Lesley Weaver, Anne Davis, and Joshua Samra of Bleichmar Fonti & Auld LLP; Jason ‘Jay’ Barnes and An Truong of Simmons Hanly Conroy LLP; and, on appeal, by Matt Wessler of Gupta Wessler LLP.

DiCello Levitt is grateful for the amicus support from a bipartisan coalition of 19 states, led by the State of Texas; the Electronic Privacy Information Center (EPIC); the American Association for Justice; and the Consumer Attorneys of California.

About DiCello Levitt

At DiCello Levitt, we’re dedicated to achieving justice for our clients through class action, data privacy, civil and human rights, business-to-business, public client, whistleblower, personal injury, and mass tort litigation. Our lawyers are highly respected for their ability to litigate and win cases—whether by trial, settlement, or otherwise—for people who have suffered harm, global corporations that have sustained significant economic losses, and public clients seeking to protect their citizens’ rights and interests. Every day, we put our reputations—and our capital—on the line for our clients.

DiCello Levitt has achieved top recognition as 2023 Plaintiffs Firm of the Year and 2023 Trial Innovation Firm of the Year by The National Law Journal, in addition to being the only law firm to be recognized by Law360 for three consecutive years as Cybersecurity and Data Privacy Practice Group of the Year. In 2022, David Straite was recognized as a Law360 Cybersecurity and Data Privacy MVP. For more information about the firm, including recent trial victories and case resolutions, please visit www.dicellolevitt.com.

Contact

David Straite: (646) 933-1000 or dstraite@dicellolevitt.com

SOURCE DiCello Levitt LLP