Google Motion to Align Tax Filing Case Briefings Is a Delay 'Excuse': Plaintiff

Google’s administrative motion Friday to align briefing schedules in two tax filing website cases should be denied because it’s relying on a motion to compel arbitration in one “as an excuse to delay proceedings” in another, said plaintiff Mary Smith’s opposition Monday (docket 5:23-cv-03527) in U.S. District Court for Northern California in San Jose.

Smith alleges tax filing services such as H&R Block, TaxAct and TaxSlayer “have been quietly transmitting sensitive financial information to Google when Americans file their taxes online” via the Google tracking pixel and business tools, said the July complaint (see 2307170033). H&R Block “has admitted that its technology would permit such transmissions,” the complaint said, and TaxAct revealed it disclosed consumers’ dollar amount of adjusted gross income and refund amounts to Google.

In early September, Google negotiated with plaintiffs in the Smith v. Google class action to set deadlines for filing a consolidated complaint and the briefing on Google’s responsive motions, said the opposition. The consolidated complaint was filed Oct. 9 with Google as the only named defendant; Google’s deadline to respond is Friday.

In the other lawsuit that Google wants to align with, Justin Hunt v. Meta Platforms, the plaintiff filed a belated copycat action vs. Google, Meta and H&R Block, the opposition noted. H&R Block intends to file a motion to compel arbitration in Hunt, and Google last week “decided that it wants to file a motion to compel arbitration in Smith too, based on H&R Block’s contemplated motion in Hunt,” said the filing. Google therefore "believes the briefing schedule it negotiated in Smith should no longer control and that any motion to dismiss in Smith should be resolved after a motion to compel arbitration is decided,” it said. Only two of the 10 named plaintiffs in Smith allege they visited H&R Block, it said.

The motion should be denied because “Google is not being entirely candid with the Court,” said the filing. The core of its argument is that it would be more efficient to decide the motion to compel arbitration first because granting that motion “may ‘moot’ the need for a motion to dismiss,” said Smith’s opposition. That argument doesn’t make sense since 80% of the plaintiffs in Smith don’t allege they used H&R Block to do their taxes, “and therefore they have nothing to do with Google’s anticipated motion to compel arbitration,” it said. Granting Google’s administrative motion to compel arbitration would delay proceedings for 80% of the Smith plaintiffs because Google would have to file its motion to dismiss their claims “no matter what,” it said.

Also, Google’s “belated decision” to move to compel arbitration doesn’t warrant upsetting the schedule Google has negotiated, said the opposition. If Google believed it had a meritorious argument for arbitration, or wanted a motion to compel arbitration to be decided first, “it could have raised that issue months ago and addressed it in the parties’ prior stipulation,” it said. “Instead, Google argues it should not be held to the schedule it negotiated because it just hatched the idea of filing a motion to compel arbitration in Smith, where H&R Block is not even a defendant,” it said.

Finally, there’s no prejudice to Google by holding it to the briefing schedule it asked for in Smith, which was “of Google’s own making,” said the filing. Google will have to file its motion to dismiss no matter how the court decides its pending administrative motion or contemplated motion to compel arbitration, said the opposition. It’s common practice to file a motion to compel arbitration along with an alternative motion to dismiss, and Google can do the same here, it said.

This isn't Google’s first motion to compel arbitration based on a third-party website’s arbitration agreement, “and so its contemplated motion to compel arbitration here will largely be a cut-and-paste of what it has filed before,” said Smith's opposition. Google “can file its motions on time, it just doesn’t want to,” it said. Google didn't comment.