Moves to dismiss class action, objecting to ‘end run’ around FTC 

Big Dogs

Back in April 2018, Sirdonia Lashay Manigault-Johnson and her child (referred to in the complaint by the mercifully short initials “R.R.”) filed a class action suit against three related internet giants: Alphabet Inc. and its two better-known subsidiaries, YouTube and Google. Filed in the District of South Carolina, Charleston Division, the action took exception to the companies’ “exfiltration” of her son’s personal information by the companies. The suit notes that YouTube is a massive source of kids’ advertising income – the suit cites a projected YouTube kids’ ad market of $1.2 billion by 2019 – and that children spend up to 30 percent of their online time on the site. This combination, the suit claims, poses a unique danger to young users that the companies fail to address.

State Case Stated

In Ms. Manigault-Johnson’s account, YouTube failed to secure her consent and neglected to provide notice that it was gathering information on R.R. As proof, she referred to the YouTube terms of service, which she claims expects users to be above 13 years of age when using the site (her son was not). She also notes that the ad services associated with YouTube – AdWords, DoubleClick and Google Preferred – lack a separate child privacy policy. Ms. Manigault-Johnson sued the three companies for intrusion upon seclusion in violation of the Children’s Online Privacy Protection Act (COPPA); a California subclass of plaintiffs sued for violations of California’s constitutional right to privacy.

The Takeaway

The three companies moved to dismiss in early June 2018. Their arguments raise interesting issues. The company attacked Ms. Manigault-Johnson’s claims as an “attempted end run around [the] exclusive enforcement structure” of the Federal Trade Commission, which is the chief enforcement agent of COPPA under the law. The plaintiff “asserts two purported state law causes of action, both of which rest entirely upon alleged COPPA violations,” Google maintained. “These claims are preempted by COPPA and should be dismissed for that reason alone.” Moreover, the motion held that even if the preemption did not apply, the rights of California, South Carolina or any other state to stake out privacy guidelines would not be weakened by rejecting her claims, “because both California and South Carolina’s privacy laws are aimed at preventing ‘egregious’ intrusions into personal and intimate affairs” and “courts have repeatedly held that the conduct at issue … does not constitute a breach of social norms or an intrusion into intimate affairs sufficient to state a claim for violation of state privacy laws.” Alphabet filed a separate motion to remove itself from the case, holding that it could not be sued because it was merely the parent company of Google and YouTube, and that no specific claims had been made against it. This is not the first time that private plaintiffs have tried to piggyback on state laws to state a claim that conduct violating COPPA, by the nature of such, states a claim under state law, notwithstanding that Congress limited the enforcement of COPPA to the FTC and state attorneys general. We will be watching this case to see whether it is successful in advancing such a theory.