Google unable to avoid mass opt-out in privacy class action

Plaintiffs’ attorneys are continuing to aggressively pursue mass arbitrations in privacy litigation. The latest challenge came when Judge Beth Labson Freeman in the Northern District of California ruled last month that plaintiffs’ firm Labaton Keller Sucharow LLP could opt out more than 69,000 class members from an ongoing class action against Google to allow these individuals to file individual arbitrations.[1]

Case summary

The underlying lawsuit, In re Google Assistant Privacy Litigation, No. 5:19-cv-04286, arose from Google allegedly capturing, without consent, recordings of individuals through Google devices and using those recordings to improve Google services and facilitate targeted advertising. Following several rounds of dismissal briefing, the court on December 11, 2023 partially granted the plaintiffs’ class-certification motion, certifying one of the plaintiffs’ three proposed classes. Following the class-certification ruling, the court denied Google’s attempt to force the claims to arbitration, finding Google had waived its right to seek arbitration.

Plaintiffs’ firms, however, apparently took note: After the court approved a class notice plan for the certified class – which included instructions for opting out of the class – Labaton sent the class administrator a letter, purporting to opt out 69,507 individuals from the class. Labaton’s letter confirmed that each of the 69,507 individuals had retained the firm to seek exclusion requests and pursue individual arbitrations against Google.[2]

Google pushed back, filing a Motion to Enforce Order Approving Class Notice Plan and Reject Mass Exclusion Request, which Labaton opposed. The court sided with Labaton, rejecting Google’s two principal arguments:

• First, Google asserted that opting out class members “en masse” infringed on these individuals’ due process rights. The court was not persuaded. According to the court, the 69,507 individuals, by authorizing the law firm to opt them out of the class, validly exercised their opt-out rights and had been afforded due process. Specifically, the court noted that these individuals “received precisely” the “notice of the right to opt out of the Class” that due process requires, and “Labaton’s letter was submitted in response to that notice.”[3]
  
  
• Second, Google argued that Labaton’s opt-out letter was procedurally deficient because it failed to include each individual’s signature, as the opt-out notice required. The court rejected this argument, finding that strict adherence to procedural opt-out requirements is not required when there is “sufficiently clear indicia of an intent to opt out.”[4] Although the court noted that the signature requirement is “common,” the court “d[id] not think such a technical detail should operate to defeat the arbitration claimants’ expressed intention to exclude themselves from a [c]lass.”[5]

Takeaways

The court differed from prior rulings addressing similar questions.

• In In re 23and Me, Inc. Customer Data Security Breach Litigation, after a plaintiffs’ firm attempted to opt out 2,968 plaintiffs from a class to allow those plaintiffs to pursue a separate state action, the court held in December 2024 that “en masse objections will not be permitted.”[6] The court supported the reasoning that “the requirement that a class member must individually sign is vital, because it ensures that the class member is individually consenting to opt out, and avoids a third party or lawyer representing that they have that class member's authority, without the class member making an informed, individual decision.”[7]
  
  
• Similarly, in In re TikTok, Inc., Consumer Privacy Litigation, more than 950 individuals sought to “opt out en masse by means of a single unsigned, electronic filing from their lawyers” instead of provide individual signatures.[8] The court in 2021 upheld the proposed individual signature requirement, holding that “opting out is an individual right” that “must be exercised individually.”[9]

It remains uncertain how future courts facing disputes over mass opt-out requests will proceed.

For more information, please contact the authors.

 

^{[1] See generally Order Denying Motion to Enforce Order Approving Class Notice Plan and Reject Mass Exclusion Request, In re Google Privacy Assistant Litig., No. 5:19-CV-04286-BLF, 2025 WL 510435 (N.D. Cal. Feb. 14, 2025).}

^{[2] Id. at *1.}

^{[3] Id. at *2.}

^{[4] Id. at *3.}

^{[5] Id.}

^{[6] In re 23andMe, Inc. Customer Data Sec. Breach Litig., No. 24-MD-03098-EMC, 2024 WL 4982986, at *25 (N.D. Cal. Dec. 4, 2024).}

^{[7] Id. (quoting In re CenturyLink Sales Pracs. & Sec. Litig., MDL No. 17-2795 (MJD/KMM), 2020 WL 3512807 at *3 (D. Minn. June 29, 2020)).}

^{[8] In re TikTok, Inc., Consumer Priv. Litig., 565 F. Supp. 3d 1076, 1092 (N.D. Ill. 2021).}

^{[9] Id.}