1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 IN RE GOOGLE REFERRER HEADER 8 PRIVACY LITIGATION Case No. 10-cv-04809-EJD
9 ORDER DENYING MOTION FOR CERTIFICATION OF 10 INTERLOCUTORY APPEAL 11 Re: Dkt. No. 120 12
13 Defendant Google LLC asks the Court to certify for interlocutory appeal its June 5, 2020 14 Order Denying Motion to Dismiss, Dkt. No. 115. The Court finds this motion suitable for 15 decision without oral argument. See N.D. Cal. Civ. L.R. 7-1(b). Having considered the parties’ 16 submission, the record in this case, and the applicable law, the Court will DENY the motion for a 17 certification of appealability. 18 I. BACKGROUND 19 This is a consumer class action against Defendant Google LLC (“Google”) arising out of 20 Google’s popular internet search engine. See Dkt. No. 51, Ex. A (“Consol. Compl.”). The 21 gravamen of Plaintiffs’ allegations is that Defendant transmits its users’ search terms to third 22 parties without the users’ consent. Id. ¶¶ 15-16; 50-57. Plaintiffs allege that Defendant does this 23 by including a “referrer header” in the “Uniform Resource Locator” (“URL”) it generates for each 24 search result. Id. ¶¶ 56-57. The URL is the address for a webpage; as such, it is transmitted to the 25 owner of the destination page. Id. ¶¶ 51-53; see generally In re Zynga Privacy Litig., 750 F.3d 26 1098, 1101 (9th Cir. 2014) (explaining URLs and referrer headers). A referrer header is a field in 27 a URL that contains the address of the webpage the user left when it clicked on the link—i.e., the 1 page that “referred” the user to the destination page. Consol. Compl. ¶¶ 50-55; see generally In re 2 Zynga Privacy Litig., 750 F.3d at 1101. According to Plaintiffs, Google includes the search terms 3 in the URL for the corresponding search results page. Consol. Compl. ¶ 56. As a result, when a 4 Google user clicks on a link on the search results page, the search terms are contained in the 5 referrer header and thus transmitted to third-party website owners. Id. ¶ 57. 6 Based on the foregoing, the operative Consolidated Complaint asserts six claims: (1) 7 violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2702(a), Consol. 8 Compl. ¶¶ 130-141; (2) breach of contract, id. ¶¶ 142-47; (3) breach of the covenant of good faith 9 and fair dealing, id. ¶¶ 148-152; (4) breach of contract implied in law, id. ¶¶ 153-58; (5) unjust 10 enrichment, id. ¶¶ 159-163; (6) declaratory judgment and corresponding injunctive relief under 28 11 U.S.C. §§ 2201-2202, id. ¶¶ 164-171. 12 Originally filed in October 2010, this suit has now traveled to the Supreme Court and back. 13 When the case was before the Supreme Court, the issue on appeal was the propriety of the parties’ 14 class settlement, which had been reached in 2013. See Frank v. Gaos, 138 S. Ct. 1697 (2018). 15 The Supreme Court did not decide that issue, however. Instead, the Supreme Court remanded the 16 case to the courts below to consider whether Plaintiffs had Article III standing in light of its 17 opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which was decided after this Court 18 denied Defendant’s motion to dismiss the case for lack of standing. Frank v. Gaos, 139 S. Ct. 19 1041, 1046 (2019). The Ninth Circuit then received briefing from the parties as to whether it 20 should decide the standing question or remand the case to this Court. See Ninth Circuit Docket, 21 Case No. 15-15858, Dkt. Nos. 66, 68, 69, 70. Defendant asked for remand to this Court, and the 22 Ninth Circuit agreed. See id. at Dkt. Nos. 66, 71. 23 On June 5, 2020, after full briefing and oral argument, see Dkt. Nos. 107, 108, 109, 110, 24 113, this Court found that Plaintiffs had sufficiently established their standing to assert all six 25 claims in the Consolidated Complaint and therefore denied Defendant’s motion to dismiss. Dkt. 26 No. 115; In re Google Referrer Header Privacy Litig., No. 10-CV-04809-EJD, 2020 WL 3035796 27 (N.D. Cal. June 5, 2020). In particular, the Court rejected Defendant’s argument that Plaintiffs 1 had failed to identify a concrete injury in fact as to each of their claims, as necessary under 2 Spokeo. Defendant now seeks certification to appeal the Court’s June 5, 2020 Order pursuant to 3 28 U.S.C. § 1292(b). Dkt. No. 120 (“Mot.”). This order follows full briefing. See Dkt. Nos. 121 4 (“Opp.”), 122 (“Reply”). 5 II. DISCUSSION 6 In general, “only final judgments” of the district courts are appealable. James v. Price 7 Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002); see 28 U.S.C. § 1291. As relevant 8 here, 28 U.S.C. § 1292(b) codifies a narrow exception to that “normal rule.” Price Stern Sloan, 9 283 F.3d at 1067 n.6. Under 28 U.S.C. § 1292(b), district court may certify a non-dispositive 10 order for interlocutory appeal if it: (1) “involves a controlling question of law”; (2) “there is 11 substantial ground for difference of opinion” on that question; and (3) “an immediate appeal from 12 the order may materially advance the ultimate termination of the litigation.” Couch v. Telescope 13 Inc., 611 F.3d 629, 633 (9th Cir. 2010) (quoting 28 U.S.C. § 1292(b)). Because Section 1292(b)’s 14 requirements are jurisdictional, certification is inappropriate unless all three are met. Id. 15 Moreover, “[t]he precedent in this circuit has recognized the congressional directive that 16 section 1292(b) is to be applied sparingly and only in exceptional cases.” In re Cement Antitrust 17 Litig., 673 F.2d 1020, 1027 (9th Cir. 1981). Accordingly, the movant bears a heavy burden to 18 show that “exceptional circumstances justify a departure from the basic policy of postponing 19 appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 20 U.S. 463, 475 (1978). 21 This is not an “exceptional” case meriting interlocutory appeal. To begin with, the Court is 22 not persuaded that “there are substantial grounds for a difference of opinion.” The Ninth Circuit 23 has elaborated on this requirement as follows: 24 To determine if a “substantial ground for difference of opinion” exists under § 1292(b), courts must examine to what extent the controlling 25 law is unclear. Courts traditionally will find that a substantial ground for difference of opinion exists where “the circuits are in dispute on 26 the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel 27 and difficult questions of first impression are presented.” 3 Federal Procedure, Lawyers Edition § 3:212 (2010) (footnotes omitted). 1 However, “just because a court is the first to rule on a particular question or just because counsel contends that one precedent rather 2 than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal.” Id. 3 (footnotes omitted). 4 Couch, 611 F.3d at 633.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 IN RE GOOGLE REFERRER HEADER 8 PRIVACY LITIGATION Case No. 10-cv-04809-EJD
9 ORDER DENYING MOTION FOR CERTIFICATION OF 10 INTERLOCUTORY APPEAL 11 Re: Dkt. No. 120 12
13 Defendant Google LLC asks the Court to certify for interlocutory appeal its June 5, 2020 14 Order Denying Motion to Dismiss, Dkt. No. 115. The Court finds this motion suitable for 15 decision without oral argument. See N.D. Cal. Civ. L.R. 7-1(b). Having considered the parties’ 16 submission, the record in this case, and the applicable law, the Court will DENY the motion for a 17 certification of appealability. 18 I. BACKGROUND 19 This is a consumer class action against Defendant Google LLC (“Google”) arising out of 20 Google’s popular internet search engine. See Dkt. No. 51, Ex. A (“Consol. Compl.”). The 21 gravamen of Plaintiffs’ allegations is that Defendant transmits its users’ search terms to third 22 parties without the users’ consent. Id. ¶¶ 15-16; 50-57. Plaintiffs allege that Defendant does this 23 by including a “referrer header” in the “Uniform Resource Locator” (“URL”) it generates for each 24 search result. Id. ¶¶ 56-57. The URL is the address for a webpage; as such, it is transmitted to the 25 owner of the destination page. Id. ¶¶ 51-53; see generally In re Zynga Privacy Litig., 750 F.3d 26 1098, 1101 (9th Cir. 2014) (explaining URLs and referrer headers). A referrer header is a field in 27 a URL that contains the address of the webpage the user left when it clicked on the link—i.e., the 1 page that “referred” the user to the destination page. Consol. Compl. ¶¶ 50-55; see generally In re 2 Zynga Privacy Litig., 750 F.3d at 1101. According to Plaintiffs, Google includes the search terms 3 in the URL for the corresponding search results page. Consol. Compl. ¶ 56. As a result, when a 4 Google user clicks on a link on the search results page, the search terms are contained in the 5 referrer header and thus transmitted to third-party website owners. Id. ¶ 57. 6 Based on the foregoing, the operative Consolidated Complaint asserts six claims: (1) 7 violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2702(a), Consol. 8 Compl. ¶¶ 130-141; (2) breach of contract, id. ¶¶ 142-47; (3) breach of the covenant of good faith 9 and fair dealing, id. ¶¶ 148-152; (4) breach of contract implied in law, id. ¶¶ 153-58; (5) unjust 10 enrichment, id. ¶¶ 159-163; (6) declaratory judgment and corresponding injunctive relief under 28 11 U.S.C. §§ 2201-2202, id. ¶¶ 164-171. 12 Originally filed in October 2010, this suit has now traveled to the Supreme Court and back. 13 When the case was before the Supreme Court, the issue on appeal was the propriety of the parties’ 14 class settlement, which had been reached in 2013. See Frank v. Gaos, 138 S. Ct. 1697 (2018). 15 The Supreme Court did not decide that issue, however. Instead, the Supreme Court remanded the 16 case to the courts below to consider whether Plaintiffs had Article III standing in light of its 17 opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which was decided after this Court 18 denied Defendant’s motion to dismiss the case for lack of standing. Frank v. Gaos, 139 S. Ct. 19 1041, 1046 (2019). The Ninth Circuit then received briefing from the parties as to whether it 20 should decide the standing question or remand the case to this Court. See Ninth Circuit Docket, 21 Case No. 15-15858, Dkt. Nos. 66, 68, 69, 70. Defendant asked for remand to this Court, and the 22 Ninth Circuit agreed. See id. at Dkt. Nos. 66, 71. 23 On June 5, 2020, after full briefing and oral argument, see Dkt. Nos. 107, 108, 109, 110, 24 113, this Court found that Plaintiffs had sufficiently established their standing to assert all six 25 claims in the Consolidated Complaint and therefore denied Defendant’s motion to dismiss. Dkt. 26 No. 115; In re Google Referrer Header Privacy Litig., No. 10-CV-04809-EJD, 2020 WL 3035796 27 (N.D. Cal. June 5, 2020). In particular, the Court rejected Defendant’s argument that Plaintiffs 1 had failed to identify a concrete injury in fact as to each of their claims, as necessary under 2 Spokeo. Defendant now seeks certification to appeal the Court’s June 5, 2020 Order pursuant to 3 28 U.S.C. § 1292(b). Dkt. No. 120 (“Mot.”). This order follows full briefing. See Dkt. Nos. 121 4 (“Opp.”), 122 (“Reply”). 5 II. DISCUSSION 6 In general, “only final judgments” of the district courts are appealable. James v. Price 7 Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002); see 28 U.S.C. § 1291. As relevant 8 here, 28 U.S.C. § 1292(b) codifies a narrow exception to that “normal rule.” Price Stern Sloan, 9 283 F.3d at 1067 n.6. Under 28 U.S.C. § 1292(b), district court may certify a non-dispositive 10 order for interlocutory appeal if it: (1) “involves a controlling question of law”; (2) “there is 11 substantial ground for difference of opinion” on that question; and (3) “an immediate appeal from 12 the order may materially advance the ultimate termination of the litigation.” Couch v. Telescope 13 Inc., 611 F.3d 629, 633 (9th Cir. 2010) (quoting 28 U.S.C. § 1292(b)). Because Section 1292(b)’s 14 requirements are jurisdictional, certification is inappropriate unless all three are met. Id. 15 Moreover, “[t]he precedent in this circuit has recognized the congressional directive that 16 section 1292(b) is to be applied sparingly and only in exceptional cases.” In re Cement Antitrust 17 Litig., 673 F.2d 1020, 1027 (9th Cir. 1981). Accordingly, the movant bears a heavy burden to 18 show that “exceptional circumstances justify a departure from the basic policy of postponing 19 appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay, 437 20 U.S. 463, 475 (1978). 21 This is not an “exceptional” case meriting interlocutory appeal. To begin with, the Court is 22 not persuaded that “there are substantial grounds for a difference of opinion.” The Ninth Circuit 23 has elaborated on this requirement as follows: 24 To determine if a “substantial ground for difference of opinion” exists under § 1292(b), courts must examine to what extent the controlling 25 law is unclear. Courts traditionally will find that a substantial ground for difference of opinion exists where “the circuits are in dispute on 26 the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel 27 and difficult questions of first impression are presented.” 3 Federal Procedure, Lawyers Edition § 3:212 (2010) (footnotes omitted). 1 However, “just because a court is the first to rule on a particular question or just because counsel contends that one precedent rather 2 than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal.” Id. 3 (footnotes omitted). 4 Couch, 611 F.3d at 633. Further, “[t]hat settled law might be applied differently does not establish 5 a substantial ground for difference of opinion.” Id. 6 In this case, “the controlling law” from the Ninth Circuit and the Supreme Court was clear: 7 “When . . . a statutory provision identifies a substantive right that is infringed any time it is 8 violated, a plaintiff bringing a claim under that provision ‘need not allege any further harm to have 9 standing.’” Campbell v. Facebook, Inc., 951 F.3d 1106, 1117 (9th Cir. 2020) (quoting 10 Eichenberger v. ESPN, Inc., 876 F.3d 979, 983–84 (9th Cir. 2017)); see also Spokeo, 136 S. Ct. at 11 1549 (In cases where the violation of a right “granted by statute” is sufficient to constitute injury 12 in fact, “a plaintiff need not allege any additional harm beyond the one Congress has identified.”). 13 The Court applied this rule and concluded that 18 U.S.C. § 2702(a) guards against invasions of 14 concrete privacy interests such that every violation thereof causes concrete harm.” In re Google 15 Referrer Header Privacy Litig., 2020 WL 3035796, at *7. In so doing, the Court followed the 16 Ninth Circuit’s most recent case law on standing in privacy cases—two of which concerned 17 similar provisions of the ECPA. See MTD Order at *5-*7 (citing Campbell, 951 F.3d at 1117; In 18 re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598 (9th Cir. 2020); Patel v. Facebook, 19 Inc., 932 F.3d 1264, 1274 (9th Cir. 2019), cert. denied, 140 S. Ct. 937 (2020)). 20 Defendant contends that there is an intra-circuit split regarding “whether to use a one-step 21 or a two-step test to determine standing,” and that Defendant followed the former. Mot. at 5. But 22 there is no material intra-circuit split. Whether framed as one step or two, the ultimate question in 23 the Ninth Circuit’s cases is whether the specific statutory violation pleaded in a complaint actually 24 harmed or presented a material risk of harm to the plaintiff. See Mot. at 5-6; see also id. at 2-3 25 (acknowledging that though some panels “do not explicitly assess” the second step, “they do go on 26 to describe the pleaded claims in terms showing that the second step was satisfied”). The Court 27 squarely addressed this question and found that Count 1 pleaded real harm to Plaintiffs’ 1 substantive privacy interests “by claiming that Google violated 18 U.S.C. § 2702 when it disclosed 2 their search terms to third parties without authorization.” In re Google Referrer Header Privacy 3 Litig., 2020 WL 3035796, at *7.1 That Defendant disagrees with the Court’s application of the 4 relevant precedents is not a ground for interlocutory appeal. 5 The Court also rejects Defendant’s contention that the Supreme Court’s ruling in Thole v. 6 U.S. Bank, N.A., 140 S. Ct. 1615 (2020) casts doubt upon this Court’s decision. See Mot. at 3. 7 Defendant filed notice that Thole had been issued on June 3, 2020, Dkt. No. 112, and the Court 8 reviewed it prior to issuing the June 5, 2020 Order. In Thole, the Supreme Court held that the 9 participants in an ERISA defined-benefit plan did not have standing to challenge alleged plan 10 mismanagement because they had received all of their monthly benefit payments and would 11 continue to do so, regardless of the outcome of the suit. 140 S. Ct. at 1619. Beyond the fact that 12 the case also concerned the injury in fact requirement for Article III standing, Thole sheds little 13 light upon the specific injuries asserted by Plaintiffs here. The Court therefore concludes that the 14 Ninth Circuit precedents it relied upon were unaffected by Thole—a conclusion already reflected 15 in its June 5, 2020 ruling. 16 Defendant’s remaining efforts to show that “a substantial ground for difference of opinion” 17 exists as to the Court’s standing analysis—including its analysis of the breach of contract claims 18 (Counts 2 and 3), quasi-contract claims (Counts 4 and 5), and request for injunctive relief (Count 19 6)—are simply a reiteration of the arguments already rejected by the Court in the June 5, 2020 20 Order. 21 Thus, the requirement that “a substantial ground for difference of opinion” is not met. 22 Nor would immediate appellate review materially advance the ultimate termination of the 23 litigation. Defendant argues, “If the Ninth Circuit agrees with Google that plaintiffs lack standing 24 to sue, the case is over.” Mot. at 4. But that is not so. Even if the Court of Appeals were to 25 reverse this Court’s finding that the Consolidated Complaint sufficiently establishes Plaintiffs’ 26
27 1 Of course, the Court expressed no opinion as to the merits of Plaintiffs’ claim that Defendant’s conduct violates the ECPA. 1 standing, “there is little doubt that leave to amend would be granted” to allow Plaintiffs to bolster 2 their standing allegations. Brantley v. NBC Universal, Inc., No. CV076101CASVBKX, 2008 WL 3 11342692, at *2 (C.D. Cal. Aug. 4, 2008). 4 The Ninth Circuit has repeatedly emphasized that “a district court should grant leave to 5 amend . . . unless it determines that the pleading could not possibly be cured by the allegation of 6 other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (internal quotation marks and 7 citation omitted); see also Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1114 (9th Cir. 8 2005) (applying rule in a case where plaintiffs failed to adequately allege standing). Leave to 9 amend is especially favored in “[s]ituations where the controlling precedents changed midway 10 through the litigation.” Sonoma Cty. Ass’n of Retired Employees v. Sonoma Cty., 708 F.3d 1109, 11 1117–18 (9th Cir. 2013). 12 Here, Plaintiffs have asserted a theory of standing based on the possibility that third parties 13 may be able to associate search terms with users’ identities through a process called 14 reidentification. Consol. Compl. ¶¶ 4, 47-49, 84-91. That theory has not yet been evaluated by 15 this Court. See In re Google Referrer Header Privacy Litig., 2020 WL 3035796, at *7 n.1. 16 Whether the risk of reidentification is sufficiently great to constitute injury in fact is a factual 17 question; accordingly, it is possible to plead facts that would establish Plaintiffs’ standing on that 18 basis. Because Plaintiffs have not had the chance to amend their allegations since the operative 19 Consolidated Complaint was filed on April 30, 2013—prior to the Supreme Court’s ruling in 20 Spokeo—leave to amend would likely be granted in the event of a reversal by the Ninth Circuit. 21 “As the plaintiffs have indicated their willingness and ability to amend their complaint 22 further if forced to do so, interlocutory appellate review . . . would, at best, generate another round 23 of amendments to the complaint most likely followed by another round of motions to dismiss.” 24 Brantley, 2008 WL 11342692, at *2; see also In re Facebook, Inc., IPO Sec. & Derivative Litig., 25 986 F. Supp. 2d 524, 531 (S.D.N.Y. 2014) (“The Second Circuit regularly denies interlocutory 26 appeals at such preliminary stages where, as here, the appeal could at most lead only to a remand 27 for repleading.”); In re Manhattan Inv. Fund Ltd., 288 B.R. 52, 56 (S.D.N.Y. 2002) (“A reversal 1 on interlocutory appeal at most could lead only to a remand for repleading, with possibilities of 2 further interlocutory appeals thereafter.”). The Court therefore concludes that an immediate 3 appeal from its June 5, 2020 Order would not materially advance the ultimate termination of the 4 litigation. 5 Accordingly, because Defendant has not carried its high burden of justifying interlocutory 6 appeal, the Court must DENY the motion. 7 Il CONCLUSION 8 For the foregoing reasons, Defendant’s motion for certification of interlocutory appeal is 9 DENIED. 10 The motion hearing currently set for September 24, 2020 is therefore VACATED and the 11 status conference currently set for September 24, 2020 is CONTINUED to October 8, 2020 at 10 12 || am. An updated joint status report is due by September 28, 2020; in it, the parties shall propose
13 a case schedule. 14 15 IT IS SO ORDERED. 16
17 || Dated: September 16, 2020 aD
Z 18 EDWARD J. DAVILA 19 United States District Judge 20 21 22 23 24 25 26 27 28 Case No.: 10-cv-04809-EJD ORDER DENYING MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL