Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 1 of 30
`
`Mark C. Mao, CA Bar No. 236165
`Beko Reblitz-Richardson, CA Bar No. 238027
`BOIES SCHILLER FLEXNER LLP
`44 Montgomery St., 41st Floor
`San Francisco, CA 94104
`Tel.: (415) 293-6800
`mmao@bsfllp.com
`brichardson@bsfllp.com
`
`James Lee (admitted pro hac vice)
`BOIES SCHILLER FLEXNER LLP
`100 SE 2nd St., 28th Floor
`Miami, FL 33131
`Tel.: (305) 539-8400
`jlee@bsfllp.com
`
`Amanda K. Bonn, CA Bar No. 270891
`SUSMAN GODFREY L.L.P
`1900 Avenue of the Stars, Suite 1400
`Los Angeles, CA 90067
`Tel: (310) 789-3100
`Fax: (310) 789-3150
`abonn@susmangodfrey.com
`
`Attorneys for Plaintiffs
`
`Bill Carmody (admitted pro hac vice)
`Shawn J. Rabin (admitted pro hac vice)
`Steven M. Shepard (admitted pro hac vice)
`Alexander P. Frawley
`(admitted pro hac vice)
`SUSMAN GODFREY L.L.P.
`1301 Avenue of the Americas,
`32nd Floor
`New York, NY 10019
`Tel.: (212) 336-8330
`bcarmody@susmangodfrey.com
`srabin@susmangodfrey.com
`sshepard@susmangodfrey.com
`afrawley@susmangodfrey.com
`
`John A. Yanchunis (admitted pro hac vice)
`Ryan J. McGee (admitted pro hac vice)
`Michael F. Ram, CA Bar No. 238027
`Ra O. Amen (admitted pro hac vice)
`MORGAN & MORGAN
`201 N. Franklin Street, 7th Floor
`Tampa, FL 33602
`Tel.: (813) 223-5505
`jyanchunis@forthepeople.com
`rmcgee@forthepeople.com
`mram@forthepeople.com
`ramen@forthepeople.com
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`ANIBAL RODRIGUEZ, SAL
`CATALDO, JULIAN
`SANTIAGO, and SUSAN LYNN
`HARVEY, individually and on behalf of all
`others similarly situated,
`
`
`
`Case No.: 3:20-cv-04688
`
`PLAINTIFFS’ RULE 15(a) MOTION
`FOR LEAVE TO AMEND COMPLAINT
`(R. CIV. P. 15(a))
`
`The Honorable Richard Seeborg
`Courtroom 3 – 17th Floor
`Date: December 8, 2022
`Time: 1:30 p.m.
`
`
`Plaintiffs,
`
`
`vs.
`
`GOOGLE LLC,
`
`
`
`Defendant.
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`PLAINTIFFS’ MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 2 of 30
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`
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`NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND COMPLAINT
`
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on December 8, 2022, at 1:30 p.m., or as soon thereafter as
`the matter may be heard in Courtroom 3, 17th Floor, 450 Golden Gate Avenue, San Francisco,
`California, before the Honorable Richard Seeborg, the undersigned Plaintiffs will and hereby do
`move the Court for an order pursuant to Rule 15(a) of the Federal Rules of Civil Procedure granting
`Plaintiffs leave to file their proposed Fourth Amended Complaint, which seeks to revise Plaintiffs’
`proposed class definitions. This Motion is based upon this Notice and Motion, the following
`Memorandum of Points and Authorities, the Declaration of Mark C. Mao, other materials in the
`record, argument of counsel, and such other matters as the Court may consider.
`ISSUE PRESENTED
`Whether Plaintiffs should be granted leave to file their proposed Fourth Amended
`Complaint, which, based on discovery, seeks to clarify the true scope of Google’s improper
`collection, saving, and use of data collected from users who switched off Web & App Activity?
`RELIEF REQUESTED
`Plaintiffs respectfully request an Order providing that Plaintiffs may file their proposed
`Fourth Amended Complaint, attached as Exhibit 1 to the concurrently filed Declaration of Mark
`C. Mao. A redline showing the proposed changes to the Complaint is attached as Exhibit 2 to the
`Mao Declaration.
`
`Dated: October 28, 2022
`
`
`
`By: /s/ Mark Mao
`
` Mark C. Mao (CA Bar No. 236165)
`
`
`
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 3 of 30
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`
`
`TABLE OF CONTENTS
`
`III. 
`
`Page
`INTRODUCTION ........................................................................................................................... 1 
`BACKGROUND ............................................................................................................................. 4 
`I. 
`This Court’s Denial in Part of Google’s First Motion to Dismiss ........................... 4 
`II. 
`This Court’s Decisions on Google’s Subsequent Motions to Dismiss and
`Strike ........................................................................................................................ 5 
`Discovery Has Substantiated Plaintiffs’ Claims and Revealed that
`Google’s Misconduct Extends Beyond Google Analytics for Firebase .................. 6 
`A.  With WAA, Google Knew Users Thought “Off” Meant Off ...................... 6 
`Google’s Misconduct with WAA-Off Data Extends Far Beyond
`B. 
`Firebase ........................................................................................................ 9 
`Proposed Amendments .......................................................................................... 10 
`IV. 
`ARGUMENT ................................................................................................................................ 12 
`I. 
`Legal Standard ....................................................................................................... 12 
`II. 
`All Four Foman Factors Favor Granting Leave to Amend Classes 1 and
`2, Relating to Non-Google Apps. .......................................................................... 13 
`A. 
`Prejudice .................................................................................................... 13 
`B. 
`Undue Delay .............................................................................................. 17 
`C. 
`Bad Faith ................................................................................................... 19 
`D. 
`Futility ....................................................................................................... 20 
`The Foman Factors Also Favor Granting Leave to Add Class 3, Relating
`to
`. .................................................................................................. 21 
`CONCLUSION ............................................................................................................................. 23 
`
`III. 
`
`
`
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 4 of 30
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`TABLE OF AUTHORITIES
`
`
`
`
`
`Page(s)
`
`Cases
`
`Aguilar v. Boulder Brands, Inc.,
`2014 WL 4352169 (S.D. Cal. Sept. 2, 2014) .............................................................. 14, 18, 19
`
`Bowen v. Target Corp.,
`2019 WL 9240985 (C.D. Cal. Nov. 12, 2019) ........................................................................ 19
`
`Brown v. Google LLC,
`2022 WL 2289057 (N.D. Cal. Mar. 18, 2022) .................................................................... 7, 14
`
`Clayborne v. Chevron Corp.,
`2020 WL 11563087 (N.D. Cal. Dec. 2, 2020) ........................................................................ 13
`
`Crawford v. Uber Techs., Inc.,
`2021 WL 4846893 (N.D. Cal. Oct. 18, 2021) (Seeborg, J.) .................................................... 19
`
`Eminence Cap., LLC v. Aspeon, Inc.,
`316 F.3d 1048 (9th Cir. 2003) ............................................................................................. 4, 13
`
`Foman v. Davis,
`371 U.S. 178 (1962) ................................................................................................ 3, 13, 21, 22
`
`Gasperin v. Furniture & Mattress Superstore,
`2009 WL 10710497 (N.D. Cal. Oct. 5, 2009) (Seeborg, J.) .................................................... 13
`
`Lopez v. Smith,
`203 F.3d 1122 (9th Cir. 2000) ....................................................................................... 4, 12, 17
`
`Malaney v. UAL Corp.,
`2011 WL 13153253 (N.D. Cal. Oct. 24, 2011) (Seeborg, J.) ............................................ 16, 20
`
`McCabe v. Six Continents Hotels, Inc.,
`2013 WL 12306494 (N.D. Cal. Oct. 10, 2013) ................................................................. 16, 17
`
`Meaux v. Nw. Airlines, Inc.,
`2006 WL 8459606 (N.D. Cal. July 17, 2006) ..................................................................... 3, 13
`
`Nangle v. Penske Logistics,
`2016 WL 9503736 (S.D. Cal. July 20, 2016) .......................................................................... 14
`
`Oracle Am., Inc. v. Hewlett Packard Enter. Co.,
`2017 WL 3149297 (N.D. Cal. July 25, 2017) ................................................................... 13, 14
`
`Risher v. Adecco Inc.,
`2021 WL 9182421 (N.D. Cal. Sept. 17, 2021) ........................................................................ 14
`
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`
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`Synchronoss Techs., Inc. v. Dropbox Inc.,
`2019 WL 95927 (N.D. Cal. Jan. 3, 2019) ................................................................................ 15
`
`Unicolors, Inc. v. Kohl’s, Inc.,
`2016 WL 9211658 (C.D. Cal. Aug. 23, 2016) ........................................................................ 15
`
`Rules
`
`Fed. R. Civ. P. 15(a)(2) ........................................................................................................... 12, 13
`
`Fed. R. Civ. P 12(b)(6) .................................................................................................................. 20
`
`Treatises
`
`6 Alan Wright & Arthur Miller, Fed. Prac. & Proc. Civ. § 1474 (3d ed. 2011) ........................... 16
`
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 6 of 30
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`
`
`INTRODUCTION
`Plaintiffs respectfully seek leave to amend their Complaint—not to add any legal claims,
`but to instead conform their class definitions to the evidence Google has produced. The core of the
`case remains the same: Plaintiffs and putative class members are individuals who turned “off”
`Google’s “Web & App Activity” control (“WAA”). In this Court’s own words, Google “‘set an
`expectation’ that it would not save plaintiffs’ ‘activity on . . . apps . . . that use Google services’
`unless plaintiffs turned WAA ‘on.’” Dkt. 109 at 16 (citations omitted). Google did not live up to
`its promises, and Plaintiffs now understand the actual scope of Google’s improper collection and
`saving of data that Google collected from class members’ activity while the class members had
`switched WAA “off” (their “WAA-off data”).
`Discovery has substantiated Plaintiffs’ claims. Google’s employees privately recognize,
`but do not publicly disclose, that Google’s WAA disclosures are
`” (Ex.1 3,
`GOOG-RDGZ-00021160 at -82) and “
` (Ex. 4, GOOG-RDGZ-00130745 at -
`46), that WAA “
` (Ex. 5, GOOG-RDGZ-00015004 at -04) and people “
`
`” (Ex. 3, GOOG-RDGZ-00021160 at -84), and that Google’s promise of control
`” (Ex. 6, GOOG-RDGZ-00020680 at -80).
`
`is
`
`
`
`.” Ex. 7, GOOG-
`RDGZ-00130381 at -81. Another Google employee, evaluating how the WAA control worked,
`truthfully described WAA as a
`Ex. 8, GOOG-RDGZ-00130416 at -601.
`Through discovery and Google’s representations in this case, Plaintiffs have been learning
`just how
`. Google’s collection and saving of users’ WAA-off data is
`not limited to Google Analytics for Firebase; even Google’s counsel claims that some of the
`documents cited above “discuss[] completely unrelated products and circumstances.” Dkt. 247 at
`5 n.3. Google also saves and ultimately profits from WAA-off data collected by way of additional
`
`
`1 “Ex.” refers to the exhibits attached to the Declaration of Mark Mao, concurrently filed herewith.
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 7 of 30
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`
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`Google
`
` embedded within non-Google apps, as well as
`
`Despite Google’s efforts to obstruct all discovery beyond Google Analytics for Firebase,
`the documents produced in this case have provided additional clarity on the full scope of Google’s
`WAA-off data collection and of Google’s saving and use of that WAA-off data. Based on this
`further discovery, Plaintiffs now seek to conform the complaint to the true scope of Google’s
`improper collection, saving and use of WAA-off data.
`—in addition to Google
`A number of different
`Analytics for Firebase—collect, save, and use WAA-off data. These include (for example)
`
`
`See Fourth Amended Complaint (“FAC”) ¶¶ 59-
`
`71.
`
`document describes a
`
`That is just the tip of the iceberg. Despite Google’s steadfast efforts to limit discovery to
`Google Analytics for Firebase, Plaintiffs have uncovered the enormous base that lies beneath—
`that the WAA “control” is entirely illusory. In fact, Google saves and uses WAA-off data generated
`from users’ interactions with
` as well, including
`
`. See id. ¶¶ 72-77. For example, one Google
`
`
`
`
`
`
`
` data flies in the face
`Ex. 10, Monsees Tr. 232:1-12. Google’s saving of WAA-off
`
`of Google’s disclosures to its users, which promise that
` are “save[d]” “[w]hen Web & App Activity is on,” not off. FAC
`¶ 95. Google must be held accountable for its plain disregard of its assurances of privacy.
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 8 of 30
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`
`
`Even with these proposed amendments to the complaint, this case remains limited to those
`people who turned off WAA. That includes both those who turned off WAA and those who turned
`off a subsetting referred to “Supplemental Web & App Activity” or “SWAA.” And the case
`remains focused on Google’s violation of the same set of disclosures that have been at the heart of
`this case from the beginning. Consistent with the discovery obtained to date and the additional
`factual allegations included in this proposed amendment, Plaintiffs seek leave to amend their
`current class definitions as follows, remaining focused on data generated during users’ interactions
`with non-Google apps.
`Class 1 – All individuals who during the Class Period (a) turned off “Web & App Activity,”
`or supplemental “Web & App Activity” and (b) whose mobile app activity was still
`transmitted to Google, from (c) a mobile device running the Android operating system
`(OS), because of
`, including Firebase SDK a
`
` scripts, on a non-Google branded mobile app.
`
`
`Class 2 – All individuals who during the Class Period (a) turned off “Web & App Activity,”
`or “supplemental Web & App Activity,” and (b) whose mobile app activity was still
`transmitted to Google, from (c) a mobile device running a non-Android operating system
`(OS), because of
`, including Firebase SDK
`
`scripts, on a non-Google branded mobile app.
`Plaintiffs also seek leave to add an additional third class, focused on
`
`:
`
`
`
`
`
`
`.
`With this amendment, Plaintiffs seek to conform their class definitions to what discovery
`has revealed and to cover the true scope of Google’s illicit collection, saving, and use of users’
`WAA-off data. Plaintiffs do not seek to add any new claims. The existing three claims, which have
`survived three motions to dismiss, apply to the revised class definitions.
`Leave to amend Classes 1 and 2 is warranted because Google cannot meet its burden to
`establish any of the Foman factors: “undue delay, bad faith or dilatory motive, futility of
`amendment, and prejudice to the opposing party.” Meaux v. Nw. Airlines, Inc., 2006 WL 8459606,
`at *1 (N.D. Cal. July 17, 2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiffs have
`not delayed in seeking this amendment; Plaintiffs are merely seeking to conform the pleadings to
`
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`
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`the evidence obtained in discovery, including recent depositions. Google also cannot establish that
`Plaintiffs seek this amendment in bad faith, nor that amendment will be futile, particularly because
`Plaintiffs’ theory of the case remains the one this Court already affirmed. And since this
`amendment simply conforms the class definition to evidence Google itself provided, there is no
`prejudice (the most significant factor). See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048,
`1052 (9th Cir. 2003). Plaintiffs do not seek to extend the case deadlines nor serve new discovery
`on the basis of this amendment.
` (Class 3). The
`This analysis is nearly identical for the new class relating to
`only difference is that Plaintiffs will need to serve new discovery. Although Plaintiffs now know
`that Google is improperly saving Plaintiffs’ and Class members’ WAA-off
` data,
`discovery to date includes limited information about what specific WAA-off data is saved, where
`that data is saved, and how Google uses it. The benefit of such discovery substantially outweighs
`any burden. Unless Plaintiffs are permitted to pursue these claims, on behalf of the same users who
`turned off WAA, Google’s liability would not correspond with the evidence that discovery has
`yielded. Relatedly, class members who have been doubly wronged would be denied the
`opportunity to pursue the full scope of their claims against Google for Google’s use of their WAA-
`off data. The amendment is simply guided by “the underlying purpose of Rule 15 . . . to facilitate
`decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d
`1122, 1127 (9th Cir. 2000). Google should not be rewarded for (until now) concealing the true
`scope of its improper saving and use of WAA-off data. Plaintiffs believe that judicial economy
`would be best served by pursuing these allegations in this litigation, including because the parties
`have already litigated the meaning of Google’s WAA disclosures and the parties have conducted
`discovery into WAA. But Plaintiffs are open to the Court’s guidance regarding whether their
`allegations relating to
` (Class 3) are better raised in separate litigation.
`BACKGROUND
`I.
`This Court’s Denial in Part of Google’s First Motion to Dismiss
`Plaintiffs are Google account holders who sought to exercise control over their data by
`using the “control” that Google purports to provide—the Web & App Activity (“WAA”) control,
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`which is a switch that users can turn on or off (sometimes referred to as “paused” or “disabled”).
`Google uniformly represented to users that WAA “must be on” to “let Google save” “info about
`your searches and other activity on Google sites, apps, and services” as well as “info about your
`browsing and other activity on . . . apps . . . that use Google services.” FAC ¶ 95. Plaintiffs alleged
`in their First Amended Complaint that they understood this uniform Google disclosure to mean
`that turning off WAA would prevent Google from collecting, saving, and using data related to
`their interactions with non-Google apps that use Google services (e.g., Firebase). First Am. Compl.
`¶¶ 75-76, Dkt. 113. Google moved to dismiss Plaintiffs’ claims, including the CDAFA, intrusion
`upon seclusion, and invasion of privacy claims, principally arguing that Plaintiffs consented to
`Google’s collection of their WAA-off data. See Dkt. 62 at 11-12 (“Because Plaintiffs consented to
`the collection of the data that forms the basis of each claim, the Complaint should be dismissed in
`its entirety with prejudice.”).
`This Court rejected Google’s principal defense, holding that “plaintiffs did not consent to
`Google collecting their data, through GA for Firebase, with WAA turned ‘off.’” Dkt. 109 at 7.
`“Google, through the WAA Materials, set an expectation that it would not save plaintiffs’ ‘activity
`on . . . apps . . . that use Google services’ unless plaintiffs turned WAA ‘on.’” Id. at 16. The
`definition of “Google services” within the Google Privacy Policy “permits the inference that GA
`for Firebase is a ‘Google service’—that is, a ‘[p]roduct[] that [is] integrated into third party
`apps[.]’” Id. at 8. This Court also explained that “[w]here, as here, a company’s public-facing
`statements are legitimately confusing, it is not the public’s fault for being confused,” and held that
`“Plaintiffs offer a cogent account of why they saw WAA as capable of turning off GA for
`Firebase’s collection of their third-party app data.” Id. at 10.
`II.
`This Court’s Decisions on Google’s Subsequent Motions to Dismiss and Strike
`Plaintiffs then filed their Second Amended Complaint, which added (1) a breach of contract
`claim and (2) allegations that Google also impermissibly collects WAA-off data by way of
`additional Google services named AdMob and Cloud Messaging. Dkt. 113. The new allegations
`regarding AdMob and Cloud Messaging were based in part on internal Google documents that had
`been produced in discovery. Dkt. 121 at 23-24 (citing internal Google documents). Google moved
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`to dismiss the breach of contract claim and Plaintiffs’ CIPA § 631 claim, and Google moved to
`strike the allegations about AdMob and Cloud Messaging. Dkt. 115.
`This Court granted Google’s motion to dismiss the contract claim, holding that the WAA
`Help Page was neither an enforceable standalone contract nor incorporated into the Google Privacy
`Policy. Dkt. 127 at 6. The Court also dismissed Plaintiffs’ CIPA claim, concluding that the SAC
`did “not allege Google’s interception of user communications ‘while the same [are] in transit’ to
`third-party apps.” Id. at 7. But the Court denied Google’s motion to strike AdMob and Cloud
`Messaging from the Complaint, holding that those allegations “were pled.” Id.
`Two weeks following the Court’s ruling, Plaintiffs filed their Third Amended Complaint,
`in which Plaintiffs sought to correct the identified deficiencies in their CIPA claim, and to allege
`breach of a unilateral contract. Dkt. 131. Google again moved to dismiss those two claims, and the
`Court granted Google’s motion in January 2022. Dkt. 209.
`III.
`Discovery Has Substantiated Plaintiffs’ Claims and Revealed that Google’s
`Misconduct Extends Beyond Google Analytics for Firebase
`Since the Court’s January 2022 ruling, Plaintiffs have uncovered additional examples of
`Google products and services by which Google collects and saves WAA-off data. With this
`amended complaint, Plaintiffs are not seeking to revive any previously dismissed claim, nor to add
`any new claims. Instead, with the benefit of additional discovery made possible by this Court’s
`denial of Google’s motion to strike, Plaintiffs now seek to conform their class definitions to
`additional facts uncovered through discovery.
`A. With WAA, Google Knew Users Thought “Off” Meant Off
`Google’s own employees agree with Plaintiffs (and the Court) that Google’s “public-facing
`statements [about WAA] are legitimately confusing.” Dkt. 109 at 10.
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`B.
`Google’s Misconduct with WAA-Off Data Extends Far Beyond Firebase
`Google has tried to deflect these concerns about Google collecting and saving WAA-off
`data by suggesting they are irrelevant to Google Analytics for Firebase. For example, according to
`Google,
` concerns addressed “completely unrelated products and circumstances.”
`Dkt. 247 at 5 n.3. Google’s argument shows why Plaintiffs’ proposed amendment is warranted.
`The problems with WAA are so pronounced that even Google cannot pinpoint them to any
`particular Google product or service. Google’s improper collection and saving of WAA-off data
`extends far beyond Google Analytics for Firebase.
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`Consistent with the concerns and criticisms expressed by Google’s own employees,
`Plaintiffs now seek to amend their Complaint to identify additional Google services and products
`by which Google impermissibly collects and saves WAA-off data,
` The
`case remains limited to people who turned off WAA, but the amendment will ensure that the class’s
`claims can be fully and fairly addressed in this case.
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`By way of example, relating to Classes 1 and 2, one additional
`that Google uses to collect and save WAA-off app activity information is
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`Based on the discovery to date, the proposed amendment also includes Google’s collecting
`and saving WAA-off data
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`Proposed Amendments
`With this amendment, Plaintiffs are not seeking to add any additional claims. Rather, for
`the existing claims (where the Court already denied Google’s motion to dismiss), Plaintiffs seek
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`Case 3:20-cv-04688-RS Document 258 Filed 10/28/22 Page 16 of 30
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`to amend their class definitions to match the scope of Google’s misconduct, as revealed through
`Google’s representations and discovery in this case.
`Plaintiffs seek to amend the class definitions for Class 1 and 2 as follows:
`Class 1 – All individuals who during the Class Period (a) turned off “Web & App Activity,”
`or supplemental “Web & App Activity” and (b) whose mobile app activity was still
`transmitted to Google, from (c) a mobile device running the Android operating system
`(OS), because of
`including Firebase SDK
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` on a non-Google branded mobile app.
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`Class 2 – All individuals who during the Class Period (a) turned off “Web & App Activity,”
`or “supplemental Web & App Activity” and (b) whose mobile app activity was still
`transmitted to Google, from (c) a mobile device running a non-Android operating system
`(OS), because of
` including Firebase SDK
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` on a non-Google branded mobile app.
`These first two classes remain focused on Google collecting, saving, and using WAA-off
`data obtained from users’ interactions with non-Google apps. And these classes remain focused on
`the same uniform Google disclosures underlying Plaintiffs’ initial Complaint. Without altering that
`focus, the amendments to Classes 1 and 2 accomplish two goals.
`First, the amendments to Classes 1 and 2 clarify that these classes include users who had
`WAA “on” but sWAA “off.”
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` But the inverse is not true. A user
`can elect to turn on WAA but turn off sWAA and/or keep sWAA off. FAC ¶ 84. Such a user would
`be providing consent for Google to “save [their] activity on Google sites and apps” but would not
`consent to Google collecting and saving their “activity from . . . apps . . . that use Google services,”
`i.e., third-party apps. FAC ¶ 95.
`Second, consistent with the Second Amended Complaint, which added allegations about
`AdMob and Cloud Messaging (see supra Background § B), the other alteration to Classes 1 and 2
`clarifies that Google’s improper collection of WAA-off data is not limited to Firebase SDK.
`Google also collects and saves WAA-off data about users’ interactions with non-Google apps
`using additional Google services, including without limitation
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`See supra Background § C. The proposed amendment contains detailed
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`allegations regarding examples of such additional Google services, relying on evidence produced
`in discovery. FAC ¶¶ 59-71.
`Plaintiffs also seek leave to add an additional class, focused on
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`This Class 3 is limited to those people who turned WAA off, and the claims are based on
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`the same uniform WAA disclosures which this Court interpreted in its initial motion to dismiss
`ruling: “Google, through the WAA Materials, set an expectation that it would not save plaintiffs’
`‘activity on . . . apps . . . that use Google services’ unless plaintiffs turned WAA ‘on.’” Dkt. 109
`at 16 (ellipsis in original).
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` Plaintiffs have learned through
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`discovery that Google saves information about WAA-off users’
`and Plaintiffs properly seek to conform the Complaint to that evidence.
`ARGUMENT
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`I.
`Legal Standard
`Under this case’s Management Scheduling