Apple Submits 9th Circuit Decision Affirming Ruling in Google Privacy Case

Apple submitted a March 5 memorandum decision by the 9th U.S. Circuit Appeals Court in Hammerling v. Google affirming dismissal of contract, privacy, consumer protection and unjust enrichment claims based on Google’s disclosure of the challenged data collection. The statement of recent decision (docket 5:22-cv-07069) was submitted Monday in support of Apple's pending motion to dismiss a consolidated data privacy class action in U.S. District Court for Northern California in San Jose. In the Google case, plaintiffs Marie Hammerling and Kay Jackson sued the tech company, alleging it surreptitiously collected personal information from Android users by tracking their download and use of third-party mobile apps and used the data for purposes other than those covered by the privacy policy. The district court dismissed the amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6), and the plaintiffs appealed. In Hammerling, the 9th Circuit agreed with Google that by explaining in its privacy policy that it collects data on third-party apps that use its services, it has “sufficiently explained" that it collects activity data in third-party apps downloaded to Android devices because those third-party apps "use" the Android operating system, said the memorandum. Because Google disclosed the challenged data collection efforts in its policy, plaintiffs’ fraud claims “fail to allege an actionable misrepresentation” and were properly dismissed, it said. Plaintiffs also failed to state a claim for breach of contract because the contract “expressly contemplates such collection,” it said. The plaintiffs’ invasion of privacy claims were properly dismissed because Google’s disclosure precludes those claims under common law and the California constitution, it said. Google’s disclosure “expressly disclosed” its intention to track users’ activity on third-party apps so plaintiffs “have no reasonable expectation of privacy in that data,” said the memorandum.