Prominent lawyer David Boies and other lawyers for Google told a federal judge in San Francisco today that settlement talks in their class-action litigation have failed and they are prepared to go to trial in August over claims that Google illegally continued to track its users' activity after they switched off a key privacy setting called "Web & App Activity." During a lengthy hearing today before US District Judge Richard Seeborg, lawyers for Google and the plaintiffs argued over issues ranging from how closely they could approach the jury during the three-week trial, to damages claims that could range from $523 million to nearly $30 billion.
Google is poised to join Meta Platforms next month in taking its first privacy case to a federal jury, with one of the US’s most prominent lawyers telling a judge today that settlement talks in the multi-billion-dollar privacy litigation have failed.US District Judge Richard Seeborg asked David Boies — lead counsel for plaintiffs suing Google on claims it illegally misled users and continued to collect their personal data after they switched off a key Google privacy control — if the two sides were holding settlement talks.
“We have had them, Your Honor,” Boies answered, “and I think it’s safe to say they’re over.” Standing beside Boies at the lectern, Google lead counsel Benedict Hur stood silently and didn’t disagree.
“So you’re saying that I shouldn’t make vacation plans,” quipped Seeborg, who is beginning the process of summoning a pool of up to 70 prospective jurors to the San Francisco courthouse for a three-week trial due to begin Aug. 18.
At the center of the case, filed in 2020 (see here), is a Google privacy setting called “Web & App Activity” —typically referred to by the abbreviation WAA — that if switched on allows Google to collect users activity across services, such as YouTube, and information from third-party apps and devices that use Google services, such as Google Analytics. The plaintiffs allege Google violated a host of privacy laws by continuing to collect the personal data of users who toggled WAA off in their privacy settlings.
During a nearly four-hour, final pretrial conference today, more than a dozen lawyers for Google and the class-action plaintiffs discussed and argued issues varying from how closely they could approach the eight-member jury during the trial, to damages claims that could range from $523 million to nearly $30 billion—depending on each side’s view.
The presence of Boies, one of the best-known lawyers in America, taking on one of the best known and most profitable companies in America — what the jurors will hear about Google’s wealth is one key dispute going into the trial — could draw significant public attention.
“You’re on TV, Mr. Boies, so perhaps you’ll get some recognition” from the jurors, Seeborg said today. “I saw you last night on TV,” added the chief judge of the Northern District of California, referring to an interview Boies did on CNN about his representation of a sexual abuse victim of the disgraced financier Jeffrey Epstein.
Beyond that, the debate today between Google and the plaintiffs illustrated how the trial could open an unprecedented view into how the California Internet giant gathers personal data from apps and services about its billions of users to target them with advertising tailored to their interests, location and demographics.
— Second Big Tech privacy trial —
Even as the first Big Tech privacy trial plays out in San Francisco this week before a jury on wiretapping claims against Meta Platforms in over women’s reproductive health data allegedly shared by the Flo Health app (see here), Google could face even more significant monetary damages if lawyers for Anibal Rodriguez and the class-action plaintiffs convince the jury that the search and advertising giant broke the law.
Seeborg said today he is planning to bifurcate the trial between a liability phase, in which the jury would reach a verdict — including a decision on whether Google’s conduct rises to the level of requiring punitive damages — and a damages phase, if the jury decides that they are liable.
“I envision that stage of the case being focused, if we get there, on Google’s financials,” Seeborg said today.
While Seeborg said he could see some evidence about Google’s advertising and other business revenue coming in during the liability phase of the trial, Google signaled today it will push to limit the jury hearing too much about its wealth.
Google lawyer Eduardo Santacana opened his laptop during the hearing to show Seeborg a proposed plaintiff trial exhibit showing a large pile of money to represent the mass of Google’s revenues against a single dollar bill representing the fraction of damages the plaintiffs were seeking. That slide, Santacana said, would be “unduly prejudicial” because the plaintiffs would be suggesting to the jury that Google could easily afford a multi-billion-dollar penalty, given its massive earnings. Google parent Alphabet reported quarterly revenue of $96.4 billion for the second quarter last week (see here).
Seeborg said he is reluctant to agree to exclude all evidence about Google’s financials from the liability phase. But he also cautioned that parts of the business such as cloud computing and YouTube aren't necessarily relevant to the trial, which would fundamentally be about Google's ads business.
“It kind of goes to their claim that Google is being callous in some fashion or another. For a massive, rich company it shows a certain callousness if they don’t care” about what data apps are collecting about users, Seeborg mused. “But at the same time, I have some concern that the revenue Google is making isn’t really relevant until we get to the punitive damages phase.”
— Pre-trial disputes —
Seeborg heard argument today on more than a dozen motions in limine that will shape the contours of the trial, in which each side will have 20 hours of court time to examine and cross-examine witnesses.
Most of those motions Seeborg did not rule on, although he said he would grant a motion by Google to block testimony by Blake Lemoine, a former Google senior software engineer whom the company describes as a disgruntled former employee (see here). Lemoine, who briefly rose to national fame in 2022 when he said he feared Google’s artificial intelligence systems had become sentient, was deposed in another Google privacy case over its Chrome collection and use of data in its “Incognito” private browsing information.
Another issue in dispute is what the plaintiffs can tell the jurors about Google’s regulatory privacy settlements, including an $85 million settlement with the Arizona attorney general in 2022 (see here) and a $1.375 billion settlement with the Texas attorney general in May (see here).
Those settlements don’t “mean Google did anything wrong,” Google lawyer Simona Agnolucci told Seeborg. “Google certainly did not admit liability in those cases. So I do not agree it’s probative” of any issues in the current case.
Another decision Seeborg must make before the start of the trial is whether to allow the plaintiffs to show the jury internal e-mails by Google employees who worried that the company was unclear to users about how WAA worked (see here).
Agnolucci said the plaintiffs should not be allowed to use internal communications from a separate privacy case over Chrome’s “Incognito” private browsing mode for the WAA trial, saying they are trying to use “a series of incendiary e-mails” that don’t illustrate Google’s motives around data collection.
“But it does, in fairness,” Seeborg interjected today. “The fact it might not be specific to the WAA world ... it still implicates some of the big questions in this case, doesn’t it?”
Agnolucci said that would be too broad a view of the privacy issues in the case. “That is not what this case is about. Just because plaintiffs are able to find a collection of e-mails they think are interesting and incendiary in some other privacy litigation does not mean we can make this case a sideshow,” she told Seeborg.
Perhaps the most thorny dispute Seeborg will have to decide is what the plaintiffs can argue about the conclusions of their damages expert. Seeborg ruled in February that damages expert Michael Lasinski could not testify to the jury that Google should be liable for up to $30 billion in damages, but he did not strike Lasinki’s theory that set the value to the class of Google’s monthly earnings from its collection of user data that would be at issue in the trial (see here).
When Santacana suggested to Seeborg today that the case was over the plaintiffs’ damages expert's estimate of compensatory damages of $523 million, Boies countered that the plaintiffs would be seeking to multiply that total by the months Google collected the data.
“I guarantee we’re going to be asking the jury for more” than $523 million, Boies said.
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