Case: 21-16281, 04/25/2022, ID: 12430568, DktEntry: 41, Page 1 of 47
`
`No. 21-16281
`_______________________________________________
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`Cara Jones, et al.,
`
`Plaintiffs-Appellants,
`
`
`v.
`
`
`Google LLC, et. al.,
`
`Defendants-Appellees.
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 5:19-cv-07016
`Hon. Beth Labson Freeman
`
`
`APPELLANTS’ REPLY BRIEF
`
`
`
`Jonathan K. Levine (No. 220289)
`Elizabeth C. Pritzker (No. 146267)
`Caroline C. Corbitt (No. 305492)
`PRITZKER LEVINE LLP
`1900 Powell Street, Suite 450
`Emeryville, CA 94608
`Telephone: (415) 692-0772
`Facsimile: (415) 366-6110
`jkl@pritkzkerlevine.com
`ecp@pritzkerlevine.com
`ccc@pritzkerlevine.com
`
`
`
`
`David S. Golub
`Steven L. Bloch
`Ian W. Sloss
`SILVER GOLUB & TEITELL LLP
`Four Landmark Square, 3d Floor
`Stamford, CT 06901
`Telephone: (203) 325-4491
`Facsimile: (203) 325-3769
`dgolub@sgtlaw.com
`sbloch@sgtlaw.com
`isloss@sgtlaw.com
`
`Attorneys for Appellants
`
`
`
`
`
`

`

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`
`
`TABLE OF CONTENTS
`
`
`
`INTRODUCTION .......................................................................................... 1
`
`Page
`
`ARGUMENT .................................................................................................. 2
`
`I.
`
`COPPA Does Not Preempt Plaintiffs’ Claims ............................. 2
`
`A.
`
`Plaintiffs’ State Law Damages Claims Are Not
`“Inconsistent” With Either COPPA’s Substantive
`Requirements or Its Remedial Scheme ............................. 2
`
`1.
`
`2.
`
`3.
`
`4.
`
`COPPA’s Remedial Scheme Does Not “Exclude”
`Remedies Based on Traditional State Law Claims .. 3
`
`Google’s Contention that Congress Intended for FTC
`Enforcement to be “Exclusive” is Unsupported,
`Erroneous, and Inconsistent with the Text of
`§ 6502(d) ................................................................. 6
`
`Plaintiffs’ Claims Would Not Result in
`“Inconsistent” COPPA Enforcement ....................... 11
`
`Preemption of Plaintiffs’ Claims Is Not Supported
`by COPPA’s Failure to Provide a Private Right of
`Action or its Lack of a “Savings Clause” ................. 18
`
`a.
`
`b.
`
`The Absence of a Private Right of Action Does
`Not Enlarge the Scope of Preemption .......... 18
`
`The Absence of a “Savings Clause” Does Not
`Limit Ordinary Preemption Principles ......... 21
`
`B.
`
`C.
`
`Plaintiffs’ Claims Are Not Impliedly Preempted by COPPA
` ......................................................................................... 21
`
`The Chamber’s Amicus Brief Does Not Support Google’s
`Arguments ....................................................................... 23
`
`
`
`ii
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`

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`II.
`
`Plaintiffs’ Claims Against the Channel Defendants Were
`Improperly Dismissed .............................................................. 25
`
`A.
`
`B.
`
`Plaintiffs’ Claims Against the Channel Defendants Are Not
`Preempted ....................................................................... 25
`
`Plaintiffs Have Sufficiently Alleged the Channel
`Defendants' Wrongdoing ................................................ 25
`
`III. Plaintiffs Are Entitled to Equitable Relief ................................ 29
`
`IV. Plaintiffs Lack Adequate Remedies at Law .............................. 31
`
`V.
`
`Plaintiffs’ Privacy, Consumer Protection, and Unjust
`Enrichment Claims Should Be Allowed to Go Forward ........... 33
`
`A.
`
`Privacy ............................................................................. 33
`
`B. Unjust Enrichment .......................................................... 36
`
`C.
`
`State Consumer Protection Statutes ............................... 37
`
`VI. The Court Should Have Granted Plaintiffs Leave to Add Parties
`and Claims. ............................................................................... 38
`
`CONCLUSION ............................................................................................. 39
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
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`

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`TABLE OF AUTHORITIES
`
`Cases
`
`Am. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) ........................................ 17
`
`Am. Life Ins. Co. v. Stewart, 300 U.S. 203 (1937) ...................................... 32
`
`Arizona v. United States, 567 U.S. 387 (2012) ............................................. 8
`
`Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................... 26
`
`Bates v. Dow Agrosciences, LLC, 544 U.S. 431 (2005) ....................... passim
`
`Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) ............................ 38
`
`Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) ......... 13, 14, 15
`
`Cel-Tech Commc'ns, Inc. v. Los Angeles Cellular Tel. Co., 973 P.2d 527
`(Cal. 1999) .......................................................................................... 38
`
`Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) ......... 30
`
`Circuit City Stores v. Adams, 532 U.S. 105 (2001) ................................21, 23
`
`City of L.A. v. Lyons, 461 U.S. 95 (1983).................................................... 29
`
`Coleman v. Mondelez Int’l Inc., No. CV208100FMOAFMX, 2021 WL
`6618557 (C.D. Cal. July 26, 2021) ...................................................... 32
`
`Gilstrap v. United Air Lines, Inc., 709 F.3d 995 (9th Cir. 2013) ......... passim
`
`Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009) ....................... 9
`
`Haas v. Travelex Ins. Servs. Inc., No. 220-CV-06171ODWPLAX, 2021 WL
`3682309 (C.D. Cal. Aug. 19, 2021) ..................................................... 32
`
`Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018) ................................. 38
`
`Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc. 602 F.3d 237 (3d Cir.
`2010) .................................................................................................. 29
`
`In re California Gasoline Spot Mkt. Antitrust Litig., No. 20-CV-03131-JSC,
`2021 WL 1176645 (N.D. Cal. Mar. 29, 2021) ..................................... 31
`
`In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 (9th Cir. 2020)
` .......................................................................................... 33, 35, 36, 37
`
`
`
`iv
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`

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`In re First All. Mortg. Co., 471 F.3d 977 (9th Cir. 2006) ............................ 27
`
`In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125
`(3d Cir. 2015) ..................................................................................... 36
`
`In re Nickelodeon Cons. Privacy Litig., 827 F.3d 262 (3d Cir. 2015) .............
`14, 36, 37
`
`In re Nifedipine Antitrust Litig., 335 F.Supp.2d 6 (D.D.C. 2004) .............. 29
`
`In re Zoom Video Communications Inc. Privacy Litigation, 525 F. Supp.3d
`1017 (N.D. Cal. 2021). ........................................................................ 38
`
`Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129 (9th Cir. 2003) .......... passim
`
`Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007) ....... 38
`
`Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008)
` ........................................................................................................... 39
`
`McDonald v. Kiloo ApS, 385 F. Supp.3d 1022 (N.D. Cal. 2019) ................. 36
`
`Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ....................................... passim
`
`Metrophones Telecomms., Inc. v. Global Crossing Telecomms., Inc., 423
`F.3d 1056 (9th Cir 2005) ............................................................ passim
`
`Milliken v. Bradley, 433 U.S. 267 (1977) .................................................... 32
`
`Munns v. Kerry, 782 F.3d 402 (9th Cir. 2015) ........................................... 30
`
`Nacarino v. Chobani, LLC, No. 20-CV-07437-EMC, 2022 WL 344966
`(N.D. Cal. Feb. 4, 2022) ..................................................................... 33
`
`New Mexico ex rel. Balderas v. Tiny Lab Prods., 457 F. Supp.3d 1103 (D.
`N.M. 2020) ......................................................................................... 11
`
`Perez v. Nidek Co., Ltd., 711 F.3d 1109 (9th Cir 2013) ........................... 13, 15
`
`Sagastume v. Psychemedics Corp., 2020 WL 8175597 (C.D. Cal. Nov. 30,
`2020) ................................................................................................. 33
`
`Sindell v. Abbot Labs, 26 Cal. 3d 588 (1980) .............................................. 28
`
`Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020) ........31, 32
`
`Souter v. Edgewell Pers. Care Co., No. 20-CV-1486 TWR (BLM), 2022 WL
`485000 (S.D. Cal. Feb. 16, 2022)....................................................... 32
`
`
`
`v
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`

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`U.S. v. Neal, 776 F.3d 645 (9th Cir. 2015) .................................................... 8
`
`United States v. Borden Co., 347 U.S. 514 (1954) ....................................... 29
`
`Watkins v. MGA Ent., Inc., 550 F. Supp. 3d 815 (N.D. Cal. 2021) .............. 31
`
`Weinberg Co. v. Bixby, 185 Cal. 87 (1921) .................................................. 28
`
`Wigod v. Wells Fargo Bank, NA, 673 F.3d 547 (7th Cir. 2010) .................. 21
`
`Zeiger v. WellPet LLC, 526 F. Supp. 3d 652 (N.D. Cal. 2021) .................... 31
`
`
`
`Statutes
`
`COPPA, 15 U.S. Code § 6501, et seq. .................................................... passim
`
`Unfair Competition Law, Cal. Bus. & Prof Code § 17200, et seq. ................ 37
`
`
`
`Rules
`
`Fed. R. Civ. P. 9(b) ...................................................................................... 37
`
`Fed. R. Civ. P. 15 .......................................................................................... 38
`
`
`
`Regulations
`
`64 Fed. Reg. 59888 ..................................................................................... 19
`
`75 Fed. Reg. 17089-93 .................................................................................. 17
`
`
`
`
`
`vi
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`
`
`INTRODUCTION
`
`Plaintiffs submit this Reply Brief in response to the Appeal Briefs of
`
`Defendants Google LLC and YouTube LLC (“Google”) and the Defendant
`
`Channel Owners (the “Channel Defendants”), and the proposed Amicus
`
`Brief submitted by the Chamber of Commerce (the “Chamber”).
`
`Google’s principal contention on this appeal is that Congress – by
`
`granting enforcement authority over COPPA to the FTC – manifested an
`
`intent to preempt all state laws that afford remedies for violations of
`
`children’s privacy on the internet. Since all state privacy laws provide
`
`remedies, Google is arguing, in effect, that all such laws are preempted.
`
`This argument (1) disregards established case law showing that a federal
`
`statute’s assignment of enforcement authority to a regulatory agency does
`
`not, without more, support preemption; (2) ignores the plain language of
`
`COPPA’s preemption provision (which only preempts “inconsistent” state
`
`law, thereby preserving “consistent” state law) and is, thus, contrary to
`
`established principles of statutory construction; (3) obliterates a century of
`
`state privacy law insofar as it protects children on the internet; and (4)
`
`would, if accepted, have the perverse effect of using a statute designed to
`
`provide children with greater protections on the internet to deprive those
`
`
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`

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`same children of longstanding state law protections. This absurd outcome
`
`should be rejected, and the district court’s decision should be reversed.
`
`ARGUMENT
`
`COPPA Does Not Preempt Plaintiffs’ Claims.
`
`A. Plaintiffs’ State Law Damages Claims Are Not
`“Inconsistent” With Either COPPA’s Substantive
`Requirements or Its Remedial Scheme.
`
`The key issue on this appeal is whether Plaintiffs’ state law damages
`
`
`I.
`
`
`
`
`claims based, inter alia, on Google’s invasions of their right to privacy are
`
`“inconsistent” with COPPA – i.e., whether they would “stand[ ] as an
`
`obstacle” to the achievement of the “purposes and objectives of Congress”
`
`in that statute. Metrophones Telecomms., Inc. v. Global Crossing
`
`Telecomms., Inc., 423 F.3d 1056, 1072-73 (9th Cir 2005). Google argues
`
`that Plaintiffs’ claims are inconsistent because (1) Congress supposedly
`
`“created an exclusive enforcement scheme for COPPA violations,” Google
`
`Br. 29; and (2) Congress created a “new and uniform federal standard
`
`governing online conduct for minors under 13” in COPPA, and “[p]rivate
`
`enforcement would undermine Congress’s intent as it likely would lead to
`
`varying and potentially conflicting state law requirements for children’s
`
`privacy across the country,” id. at 29-30. These arguments should be
`
`rejected.
`
`
`
`2
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`

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`1.
`
`COPPA’s Remedial Scheme Does Not “Exclude”
`Remedies Based on Traditional State Law Claims.
`
`Google first argues that Plaintiffs, in interpreting § 6502(d), go
`
`
`
`“fatally awry” by “focus[ing] solely on the word ‘inconsistent’” and
`
`“[i]gnoring the rest of the provision” – in particular, the statute’s use of the
`
`word “treatment.” Google argues this is important, because the word
`
`“treatment” “requires an analysis of both the substantive requirements of
`
`state law as compared to COPPA and of the remedial approach under each
`
`scheme.” Google Br. 27-28 (emphasis in original).
`
`
`
`In fact, Plaintiffs – far from “ignoring” this issue – focused on it at
`
`length in their Opening Brief (at 33-38), where they showed that it makes
`
`no difference whether “treatment” is read to refer to both COPPA’s
`
`substantive requirements and its remedial scheme, because Plaintiffs’ state
`
`law claims in this case are not “inconsistent” with either.
`
`
`
`This Court – in interpreting preemption provisions which, like
`
`§ 6502(d), bar “inconsistent” state laws (whether substantive or remedial)
`
`– has drawn on an “implied conflict preemption” analysis, and interpreted
`
`such provisions as barring only state laws that “stand[ ] as an obstacle to
`
`the accomplishment . . . of the full purposes and objectives of Congress.”
`
`Metrophones, 423 F.3d at 1072-73. Here, Plaintiffs’ state law damages
`
`claims do not “stand as an obstacle” to the accomplishment of “the full
`
`
`
`3
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`

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`purposes and objectives” of either COPPA’s substantive “requirements” or
`
`its “remedial scheme.” As is shown both in Plaintiffs’ Opening Brief (at 5,
`
`35) and below, Plaintiffs’ claims in this case fully support those purposes
`
`and objectives. Accordingly, Plaintiffs’ claims are not foreclosed by
`
`COPPA’s preemption provision regardless of whether Google’s reading of
`
`“treatment” is correct.
`
`
`
`In fact, Google’s analysis goes “fatally awry” in its erroneous
`
`assumption that damages claims based on violations of established state
`
`law rights and causes of action (e.g., the right to privacy) must be
`
`preempted whenever those claims are supported by breaches of standards
`
`of conduct drawn from “parallel” federal laws that do not provide for
`
`damages. Numerous cases demonstrate that this assumption is wrong.
`
`
`
`As the Supreme Court stated in Medtronic, Inc. v. Lohr, 518 U.S. 470,
`
`495 (1996):
`
`
`
`
`
`Nothing in the [applicable preemption provision] denies Florida
`the right to provide a traditional damages remedy for violations
`of common law duties when those duties parallel federal
`requirements. The presence of a damages remedy does not
`amount to the additional or different ‘requirement’ that is
`necessary under the [applicable preemption provision], rather,
`it merely provides another reason for manufacturers to comply
`with identical existing ‘requirements’ under federal law.
`
`
`See also Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 447-48 (2005)
`
`(state law requirements that are “equivalent to and fully consistent with”
`
`
`
`4
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`

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`federal requirements are not preempted: “although FIFRA does not provide
`
`a federal [damages] remedy to farmers . . . who are injured as a result of a
`
`manufacturer’s violation of FIFRA’s labeling requirements, nothing [in
`
`FIFRA’s preemption provision] precludes States from providing such a
`
`remedy”); Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1132, as amended
`
`in denial of reh’g, 350 F.3d 915 (9th Cir. 2003) (upholding damages claim
`
`based on non-compliance with federal guidelines: “We cannot see how the
`
`duty the state common law imposed, that [defendant] test urine and report
`
`the results with due care, could be inconsistent with the federal guidelines,
`
`which require the same thing with more specificity”); Gilstrap v. United Air
`
`Lines, Inc., 709 F.3d 995, 1010 (9th Cir. 2013) (upholding personal injury
`
`claim based on federal standards of care: “The FAA administrative
`
`enforcement scheme . . . does not provide any mechanism for resolving or
`
`compensating individual personal injury claims,” and state damages
`
`liability premised on federal duties would not “increase the burdens facing
`
`airlines, as they already must plan for and comply with state tort law for
`
`negligence in the operation of airlines”).
`
`
`
`Like COPPA, each of the statutes at issue in the foregoing cases
`
`provided for enforcement by a federal agency, and none provided a private
`
`right of action for damages; however, none of the cases found that those
`
`
`
`5
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`circumstances precluded state law damages claims based on conduct
`
`parallel to federal standards.
`
`2. Google’s Contention that Congress Intended for
`FTC Enforcement to be “Exclusive” is
`Unsupported, Erroneous, and Inconsistent with
`the Text of § 6502(d).
`
`
`Google’s repeated assertion that in enacting COPPA, Congress created
`
`
`
`an “exclusive” remedial scheme is both unsupported and incorrect insofar
`
`as Google seeks to suggest that Congress intended for COPPA’s remedies to
`
`be “exclusive” of parallel state law damages claims. While the FTC is
`
`specifically authorized to enforce COPPA, 15 U.S.C. §§ 6504(a)(1), 6505(b),
`
`neither COPPA’s preemption clause, nor anything else in COPPA,
`
`“excludes” private parties from seeking damages based on conduct which –
`
`although covered in COPPA – independently supports traditional state law
`
`causes of action. The enforcement powers conferred on the FTC in COPPA
`
`are no more “exclusive” of parallel state-based damages claims than the
`
`enforcement powers given, for example, to the FDA in Lohr, 518 U.S. at
`
`476-78 (describing the FDA’s rigorous “premarket approval process”), or
`
`the EPA in Bates, 544 U.S. at 437-38 (describing FIFRA as a
`
`“comprehensive regulatory statute”), or the FAA in Gilstrap, 709 F.3d at
`
`999-1001 (describing FAA’s complex regulation of air carriers with respect
`
`to the treatment of handicapped persons). The fact that a regulatory statute
`
`
`
`6
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`assigns enforcement authority to an administrative agency, taken alone,
`
`says nothing about whether state law damages claims arising out of conduct
`
`that parallels federal statutory standards should be preempted.
`
`
`
`Moreover, the plain language of § 6502(d) contradicts Google’s
`
`assertion that the FTC’s enforcement authority over the conduct covered by
`
`COPPA is “exclusive” of all state law remedies for violations of the privacy
`
`rights on the internet of children under 13. Section 6502(d) only preempts
`
`“inconsistent” state law. This Court has repeatedly held that preemption
`
`provisions barring “inconsistent” state law reflect Congress’s intention to
`
`preserve “consistent” state law. Metrophones, 423 F.3d at 1072 (“by
`
`expressly limiting federal preemption to state requirements that are
`
`inconsistent with the federal regulations, Congress signaled its intent not to
`
`occupy the entire field . . . .”) (emphasis in original); see also Ishikawa, 343
`
`F.3d at 1133 (“[T]he ‘express provisions for preemption of some state laws,’
`
`the inconsistent ones, ‘imply that Congress did not preempt state law
`
`generally’”) (emphasis added).
`
`
`
`Google’s interpretation of § 6502(d) would obliterate all state privacy
`
`law in the relevant field, because all such laws provide remedies (equitable,
`
`in damages, or both) that, according to Google, are barred by the FTC’s
`
`“exclusive” enforcement authority. Google’s argument, thus, would require
`
`
`
`7
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`this Court to interpret COPPA’s preemption provision in a way that would
`
`render the word “inconsistent” meaningless – contrary to Congress’s clear
`
`intent and to well-established principles of statutory construction. See U.S.
`
`v. Neal, 776 F.3d 645, 652 (9th Cir. 2015) (“We must ‘interpret [the]
`
`statute[ ] as a whole, giving effect to each word and making every effort not
`
`to interpret a provision in a manner that renders other provisions . . .
`
`meaningless . . . .’”).
`
`
`
`Even if Google’s interpretation did not conflict with Congress’s
`
`carefully-crafted language, Google’s contention that state privacy laws
`
`(because they all provide remedies) are “inconsistent” with COPPA is
`
`nonsensical. In effect, Google is arguing that Congress intended for COPPA
`
`to preempt the entire “field” of children’s privacy on the internet. However,
`
`defendants’ counsel expressly denied in the district court that Google was
`
`claiming that Congress intended to establish “field preemption” in COPPA.
`
`See, e.g., 3-ER-327 (Google Counsel, Edith Ramirez: “We are not arguing
`
`field preemption”).1 And, more importantly, any such claim would clearly
`
`
`
`
` 1
`
` Under “field preemption,” “‘[s]tates are precluded from regulating
`conduct in a field that Congress, acting within its proper authority, has
`determined must be regulated by its exclusive governance.’” Gilstrap, 709
`F.3d at 1003, quoting Arizona v. United States, 567 U.S. 387, 399 (2012).
`
`
`
`8
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`be wrong, since § 6502(d), on its face, only preempts “inconsistent” state
`
`laws.
`
`
`
`Google cites Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1050 (9th
`
`Cir. 2009), for the proposition that COPPA’s assignment of enforcement
`
`authority to the FTC reflects Congress’s intent to “limit enforcement actions
`
`to those best suited to detect, investigate, and if appropriate, prosecute
`
`violations.” Google Br. 29, 31. However, the statute at issue in Gordon (the
`
`“CAN-SPAM Act”) was significantly different from COPPA. That statute
`
`provided for “a limited private right of action” authorizing a specified class
`
`of plaintiffs to sue for damages, 575 F.3d at 1048, its preemption provision
`
`expressly preserved state fraud actions, and it carved out and preserved
`
`other specific areas of state law. Id. at 1060-61. In light of Congress’s clear
`
`intention to save specified state torts from preemption, and also to provide
`
`a private right of action for a limited class of plaintiffs, the Court inferred
`
`that state law outside those specifically preserved areas was preempted.
`
`COPPA has none of those characteristics.
`
`
`
`As Plaintiffs showed in their Opening Brief (at 5, 43-44), the FTC
`
`itself has acknowledged the non-exclusive nature of its enforcement
`
`authority, stating that “COPPA was enacted in the shadow of state privacy
`
`laws – including state protections that are particular to minors – that had
`
`
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`9
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`existed for nearly a century. . . . Congress can hardly have intended to
`
`displace this vast body of state statutory and common law beyond the
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`limited scope of the preemption set forth expressly in section 6502(d).”2
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`Rather, “[s]tate law protections of teenagers’ online privacy complement –
`
`rather than obstruct – Congress’ ‘full purposes and objectives’ in enacting
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`the statute.” Id.
`
`
`
`
`
`Google seeks to distinguish this FTC submission, arguing that it was
`
`filed in a case involving whether COPPA preempted privacy claims by
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`plaintiffs over the age of 13, to whom COPPA does not apply. Google Br. 32.
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`However, this does not detract from the FTC’s acknowledgment that
`
`COPPA was enacted against the backdrop of 100 years of state privacy law;
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`that Congress did not intend to displace this “vast body of state statutory
`
`and common law;” that the scope of § 6502(d) is “limited;” and that state
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`damages remedies “complement, rather than obstruct,” the objectives of
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`COPPA. All of these things are equally true with respect to the privacy of
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`children under the age of 13.
`
`
`
`
` 2
`
` See 2-ER-106-07 (FTC amicus brief filed March 20, 2014 in Fraley v.
`Facebook, Inc., No. 13-16819, 2014 WL 1279409 at *12 (9th Cir. 2014)
`(citations omitted)).
`
`
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`
`
`Google also seeks to distinguish the holding in New Mexico ex rel.
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`Balderas v. Tiny Lab Prods., 457 F. Supp.3d 1103, 1121 (D. N.M. 2020),
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`which rejected a preemption defense to a state law claim for “intrusion
`
`upon seclusion.” Google argues that the plaintiff in Balderas – the Attorney
`
`General of New Mexico – was authorized to bring the action under § 6504
`
`of COPPA (Google Br. 36), and it is true that Balderas was brought, in part,
`
`as a parens patriae action. However, § 6504 only authorizes attorneys
`
`general to enforce COPPA. It does not authorize them to bring non-COPPA
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`claims, e.g., state law privacy claims, so – in bringing such claims – state
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`attorneys general are no different than any private plaintiff. It follows that,
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`if such claims were deemed to “conflict” with COPPA’s remedial scheme (as
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`Google contends), they are preempted to the same extent as they would be
`
`if asserted by a private party. Nonetheless, the court in Balderas allowed
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`the intrusion claim to proceed.
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`3. Plaintiffs’ Claims Would Not Result in
`“Inconsistent” COPPA Enforcement.
`
`Google next argues that Congress intended to create a “uniform
`
`
`
`federal standard governing online conduct for minors under 13,” Google Br.
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`29, and asserts that allowing private rights of action would “likely . . . create
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`inconsistency with COPPA’s enforcement regime.” Id. at 30. This argument
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`is meritless.
`
`
`
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`Case: 21-16281, 04/25/2022, ID: 12430568, DktEntry: 41, Page 18 of 47
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`
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`First, as stated above, Plaintiffs’ claims are parallel to – i.e., not
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`inconsistent with – COPPA’s requirements. Indeed, Google contradicts
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`itself by asserting elsewhere (id. at 25-26, 47-48) that Plaintiffs’ allegations
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`are based on the same “activities” and “actions” as those described in
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`COPPA. The Supreme Court has clearly stated that state law damages
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`claims based on conduct that parallels conduct that is also proscribed in a
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`federal statute does not give rise to the sorts of “inconsistencies” that
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`Google pretends to be concerned about. See, e.g., Lohr, 518 U.S at 495.
`
`
`
`Second, having argued that Plaintiffs’ claims should be preempted
`
`because they will impose “inconsistent” standards, Google reverses its field
`
`and argues that Plaintiffs’ state law privacy claims must be preempted
`
`because they address conduct that is identical to that proscribed in COPPA.
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`Google Br. 25 (plaintiffs’ claims “derive from and are wholly dependent on
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`COPPA”); see also id. at 36, 47-48.
`
`
`
`Both of Google’s contradictory positions are wrong. Plaintiffs’ claims
`
`in this case are neither “inconsistent” with COPPA nor “wholly dependent”
`
`on it. Rather, Plaintiffs are following the precise “narrow gap” that this
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`Court has laid out for persons asserting claims like the present:
`
`The plaintiff must be suing for conduct that violates the FDCA (or
`else his claim is expressly preempted by [21 U.S.C.] § 360k(a)), but
`the plaintiff must not be suing because the conduct violates the FDCA
`
`
`
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`(such a claim would be impliedly preempted under [Buckman Co. v.
`Plaintiffs’ Legal Comm., 531 U.S. 341 (2001)]).
`
`Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1120 (9th Cir 2013) (emphasis in
`
`original) (quoting In re Medtronic, 623 F.3d 1200, 1204 (9th Cir. 2010)).
`
`
`
`This is exactly what Plaintiffs are doing in the present case. They are
`
`suing “for conduct that violates” COPPA, but they are “not . . . suing
`
`because the conduct violates” COPPA. Rather, Plaintiffs’ claims are based
`
`on Google’s violations of their traditional, preexisting state law rights, inter
`
`alia, against “intrusion upon seclusion.” See Plaintiffs’ Third Amended
`
`Complaint (“TAC”), 2-ER-170, 2-ER-219-221. This well-
`
`established state law cause of action imposes general common law duties;
`
`however, the requirements of COPPA also reflect, and include, those duties.
`
`Thus, the conduct detailed in the TAC, see 2-ER-179-213, violates the
`
`general requirements of the common law, and those requirements are also
`
`reflected in the specific proscriptions of COPPA. Plaintiffs’ claims do not
`
`“exist solely by virtue of” COPPA, because, if COPPA did not exist, the
`
`conduct described in the TAC would still state a claim for “intrusion upon
`
`seclusion” and all of the other state law causes of action alleged in the SAC.
`
`In sum, like the plaintiffs in Lohr, Bates, Ishikawa, Gilstrap and many
`
`other cases, Plaintiffs here assert traditional state law claims, whose
`
`
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`violation can be established by breaches of “parallel” federal standards of
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`conduct. Such claims are not preempted.3
`
`
`
`Google argues that its position is supported by Buckman; however,
`
`that is not the case. In Buckman, the plaintiffs’ claims did “exist solely by
`
`virtue of” federal law. They were “fraud on the FDA” claims based on
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`statements made to the FDA in support of an application for approval of a
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`medical device which allegedly violated the FDA’s detailed administrative
`
`
`
`
` 3
`
` This distinction also disposes of Google’s arguments based on In re
`Nickelodeon Cons. Privacy Litig., 827 F.3d 262 (3d Cir. 2015). Google Br.
`31-32. As Plaintiffs showed in their Opening Brief (at 51-52), preemption
`was an issue in Nickelodeon because the plaintiffs there were suing based
`on the defendants having accessed a particular type of private information
`– “static digital identifiers” – that, at that time (unlike now), was not
`covered by the FTC’s COPPA regulations. This caused plaintiffs’ state law
`privacy claims to be “inconsistent” with COPPA. Id. at 286, 291-92.
`However, the Third Circuit held that the “wrong at the heart” of the
`plaintiffs’ claims in Nickelodeon was that the defendant had obtained
`access to their private data through false pretenses – and because COPPA
`“says nothing about whether [children’s] data can be collected using
`deceitful tactics,” there was no “inconsistency between COPPA and
`plaintiffs’ deception-based state privacy claims for damages. Id. at 291-92.
`Unlike the situation in Nickelodeon, there are no inconsistencies between
`the types of private data on which Plaintiffs base their claims here and the
`kinds covered in COPPA. Notably, the Third Circuit was untroubled by the
`issue that Google asserts here – i.e., the supposed “inconsistency” between
`state law damages remedies and COPPA’s remedial scheme.
`
`
`
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`disclosure requirements.4 The principal basis for the Court’s decision was
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`that it found “clear evidence that Congress intended that the [relevant
`
`statute] be enforced exclusively by the Federal Government,” id. at 352; see
`
`also id. at 349 & n.4. However, the Court also expressed concerns based on
`
`the unique nature of the regulatory scheme involved and the risk that
`
`private tort claims could disrupt that scheme. Id. at 348-51. These
`
`circumstances do not apply here. Unlike in Buckm