Judge delays Google's push to consolidate 2,296 privacy lawsuits

A judge deferred hearing a petition to consolidate cases against Google to create one of the largest privacy lawsuits in California history, over claims its Incognito browser secretly collected users' data.

Santa Clara County Superior Court Judge Charles F. Adams was appointed coordination motion judge in the Judicial Council Coordination Proceeding and must set a hearing on coordinating more than 370,000 plaintiffs in 2,296 lawsuits within 30 days after a hearing Monday.

Plaintiffs allege Google's Incognito browser collected users' data during private browsing sessions despite it being marketed as a safe, anonymous option. Google was contacted for comment but did not respond by press time. Luna, et al. v. Google LLC, 24CV434093 (St. Clara Cty. Super. Ct. filed Mar. 28, 2024).

Attorney for Google, Aarti Reddy of Cooley LLP, asked Adams at Monday's hearing to vacate the trial date set for June 18 so the petition could be heard. Reddy also informed the court that 5,000 new related complaints had been filed by Bellatrix Law PC and would require an add-on petition, which if granted could add another 30 days of trial delay.

Counsel for just under a third of all plaintiffs, Beko O. Reblitz-Richardson of Boies Schiller Flexner LLP, objected to the petition for consolidation and urged the court to keep the June trial date.

"Four individuals [plaintiffs] have health conditions that affect memory, eyesight and ability to travel," Reblitz-Richardson said. "We don't think it makes sense at this stage to take the train off the tracks."

Potter Handy LLP currently represents more than 250,000 plaintiffs in related cases.

Google pushed to centralize all proceedings -- including a rogue $200 million pro se case -- arguing that coordination will avoid inconsistent rulings and streamline litigation over identical claims.

The pro se plaintiff, Antonio Hood, whose case is being heard in Orange County, creates additional complexity for consolidation and confusion after attorneys from Boies Schiller Flexner and Morgan & Morgan PA confirmed he was part of their tranche of more than 96,000 plaintiffs.

Reddy wrote in a memo supporting Google's consolidation petition the plaintiffs' counsel "offered no further update and was unable to confirm they had spoken with Mr. Hood, continue to represent him... or that he was willing to withdraw or transfer the pro se action."

Hood did not appear at Monday's hearing and could not be reached for comment.

At Monday's hearing, Mark C. Mao, also of Boies Schiller, said, "I don't know if he [Hood] agrees it's the same kind of case [as other plaintiffs]. He opposes co-ordination of cases." No further clarification was made by counsel on Hood's status.

The lawsuit builds on findings from the Brown v. Google LLC federal class action (filed in 2020), which established that Incognito users' data was collected and awarded the certified class injunctive relief.

Anita Taff-Rice, founder of Walnut Creek based technology and communications law firm iCommLaw, said in an emailed comment on the cases Monday, "The Brown case offers a good preview of the likely strength of the plaintiffs' claims because that case was ready to go to trial before Google settled. 

"The Brown court agreed that customers' browsing data was 'communications' for the purposes of the wiretap acts and that the way Google collected that private browsing data made it impossible for people to avoid Google's tracking and collection."

The plaintiffs in the newest case are pursuing monetary damages individually: $5,000 per alleged violation of the California Invasion of Privacy Act and punitive damages. They claim Google's actions constitute unauthorized wiretapping and eavesdropping, as well as tracking communications without consent.

Taff-Rice added, "The consolidation of the cases could magnify the effect if Google gets an unfavorable result, in part because there will be a single order at one time rather than a series of orders being issued over time."

On the impacts this case could have on the technology and information sector, Taff-Rice said, "A huge, high-profile case such as this will undoubtedly serve as a warning signal to other companies collecting customer data that they cannot escape liability simply because data is collected from an intermediate source."