Google Cites Statute of Limitations in Motion to Dismiss COPPA Suit

The plaintiffs’ claims in a June privacy complaint against Google and its Admob subsidiary are time-barred, fail to state a claim under Rule 12(b)(6) and are preempted by the Children’s Online Privacy Protection Act (COPPA), said the defendants' motion to dismiss Thursday (docket 5:23-cv-03101) in U.S. District Court for Northern California in San Jose.

Plaintiffs Jen Turner, Kirenda Johnson and Barbara Hayden-Seaman sued Google and Admob on behalf of six minors in June, alleging Google and its advertising subsidiary “knowingly and intentionally” used apps to collect minors’ personal information without parental consent to target them with “highly lucrative behavioral advertising at the expense of the children’s privacy rights.” The company “exploited children” under 13 for financial gain by luring them with child-oriented content and “manipulating them” to remain engaged with the apps “to the detriment of their mental health, so that they could earn advertising revenue,” it said.

California plaintiffs have no standing under that state’s Unfair Competition Law, and Florida and New York plaintiffs fail to state a claim under those states’ consumer protection laws, defendants said.

Plaintiffs’ “attempt to gloss over a glaring statute-of-limitations problem through opaque allegations about when their claims arose,” Google said, noting the focus of plaintiffs' claims, Google’s Designed for Families (DFF) program, “is a now-deprecated program” within Google’s Play Store. As a condition of participating in DFF, mobile-app developers had to have "expressly warranted to Google that they would comply with COPPA." One developer, Tiny Lab, misrepresented its app as COPPA-compliant, Google said, and Google terminated the developer over five years ago, outside the limitations period for plaintiffs’ claims, it said.

Plaintiffs “broadly posit” that, if an online service operates a marketplace that hosts content that's relevant to children, then everything in the marketplace is “child-directed content’’ under COPPA, Google said, but “that is not the law and, indeed, would read the actual-knowledge requirement out of the COPPA Rule,” it said. Plaintiffs assert their COPPA theory through state-law claims, “but because those claims are plainly ‘inconsistent’ with COPPA, they are preempted,” it said.

Plaintiffs' claims under states’ consumer-protection laws are “riddled with deficiencies,” Google said. Causation is an "essential element” of all three states’ statutes, but plaintiffs fail to allege “that they ever saw -- much less relied on -- a single Google representation regarding DFF," it said. Plaintiffs say they had a reasonable expectation of privacy in the data they allege was wrongly collected and used by Google, but they “could not have any such expectation given Google’s public disclosures regarding data collection and use,” the complaint said. “The routine collection of anonymized data at issue here does not egregiously breach social norms in the manner that California law prohibits.”