Case: 21-16281, 12/28/2022, ID: 12618937, DktEntry: 59-1, Page 1 of 14
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`CARA JONES, as parent and guardian No. 21-16281
`of E.J., N.J., A.J., and L.J., minors;
`
`JUSTIN EFROS, as parent and
`D.C. No. 5:19-cv-
`guardian of J.A.E. and J.R.E., Minors;
`07016-BLF
`NICHOLE HUBBARD, as parent and
`
`guardian of C.H., a minor; individually
`
`and on behalf of all others similarly
`OPINION
`situated; RENEE GILMORE, as
`parent and guardian of M.W., a minor;
`JAY GOODWIN, as parent and
`guardian of A.G., a minor; BOBBI
`DISHMAN, as parent and guardian of
`C.D., a minor; PAULA RIDENTI, as
`parent and guardian of R.A. and
`R.M.A., minors; C.H.; E.J.; N.J.; A.J.;
`L.J.; J.A.E.; J.R.E.; M.W.; A.G.; C.D.,
`
`
`
` v.
`
`
`GOOGLE LLC; YOUTUBE, LLC;
`MATTEL, INC.; DREAMWORKS
`ANIMATION LLC; HASBRO, INC.;
`HASBRO STUDIOS, LLC; THE
`CARTOON NETWORK, INC.;
`CARTOON NETWORK STUDIOS,
`INC.; POCKETWATCH, INC.;
`
`Plaintiffs-Appellants,
`
`
`
`
`
`
`
`
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`CARA JONES, as parent and guardian No. 21-16281
`of E.J., N.J., A.J., and L.J., minors;
`
`JUSTIN EFROS, as parent and
`D.C. No. 5:19-cv-
`guardian of J.A.E. and J.R.E., Minors;
`07016-BLF
`NICHOLE HUBBARD, as parent and
`
`guardian of C.H., a minor; individually
`
`and on behalf of all others similarly
`OPINION
`situated; RENEE GILMORE, as
`parent and guardian of M.W., a minor;
`JAY GOODWIN, as parent and
`guardian of A.G., a minor; BOBBI
`DISHMAN, as parent and guardian of
`C.D., a minor; PAULA RIDENTI, as
`parent and guardian of R.A. and
`R.M.A., minors; C.H.; E.J.; N.J.; A.J.;
`L.J.; J.A.E.; J.R.E.; M.W.; A.G.; C.D.,
`
`
`
` v.
`
`
`GOOGLE LLC; YOUTUBE, LLC;
`MATTEL, INC.; DREAMWORKS
`ANIMATION LLC; HASBRO, INC.;
`HASBRO STUDIOS, LLC; THE
`CARTOON NETWORK, INC.;
`CARTOON NETWORK STUDIOS,
`INC.; POCKETWATCH, INC.;
`
`Plaintiffs-Appellants,
`
`
`
`
`
`
`
`
`
`
`
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`
`2
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`
`
`
`
` Defendants-Appellees.
`
`REMKA, INC.; RTR PRODUCTION,
`LLC; RFR ENTERTAINMENT,
`INC.,
`
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Beth Labson Freeman, District Judge, Presiding
`
`Argued and Submitted August 31, 2022
`Seattle, Washington
`
`Filed December 28, 2022
`
`Before: Michael Daly Hawkins, M. Margaret McKeown,
`and Gabriel P. Sanchez, Circuit Judges.
`
`Opinion by Judge McKeown
`
`
`SUMMARY*
`
`
`Preemption / Children’s Online Privacy Protection Act
`
`The panel reversed the district court’s dismissal, on
`preemption grounds, of a third amended complaint in an
`action brought by a class of children, appearing through their
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
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`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`3
`
`guardians ad litem, against Google LLC and others, alleging
`that Google used persistent identifiers to collect data and
`track their online behavior surreptitiously and without their
`consent in violation of the Children’s Online Privacy
`Protection Act (“COPPA”).
`Google owns YouTube, a widely used online video-
`sharing platform that is popular among children. Google’s
`targeted advertising is aided by sophisticated technology that
`delivers curated, customized advertising based on
`information about specific users. Google’s technology
`depends partly on what Federal Trade Commission (“FTC”)
`regulations call “persistent identifiers,” which is information
`“that can be used to recognize a user over time and across
`different Web sites or online services.” 16 C.F.R. §
`312.2. In 2013, the FTC adopted regulations under COPPA
`that barred
`the collection of children’s “persistent
`identifiers” without parental consent.
`The plaintiff class alleges that Google used persistent
`identifiers to collect data and track their online behavior
`surreptitiously and without their consent. They plead only
`state law claims arising under the constitutional, statutory,
`and common
`law of California, Colorado, Indiana,
`Massachusetts, New Jersey, and Tennessee, but also allege
`Google’s activities violate COPPA. The district court held
`that the “core allegations” in the third amended complaint
`were squarely covered, and preempted, by COPPA.
`The panel considered the question of whether COPPA
`preempts state law claims based on underlying conduct that
`also violates COPPA’s regulations. The Supreme Court has
`identified three different types of preemption—express,
`conflict, and field. First, express preemption is a question of
`statutory construction. COPPA’s preemption clause
`
`
`
`Case: 21-16281, 12/28/2022, ID: 12618937, DktEntry: 59-1, Page 4 of 14
`
`4
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`provides: “[n]o State or local government may impose any
`liability . . . that is inconsistent with the treatment of those
`activities or actions under this section.” 15 U.S.C. §
`6502(d). The panel held that state laws that supplement, or
`require the same thing, as federal law, do not stand as an
`obstacle
`to Congress’
`objectives,
`and
`are
`not
`“inconsistent.” The panel was not persuaded that the
`insertion of “treatment” in the preemption clause here
`evinced clear congressional intent to create an exclusive
`remedial
`scheme
`for
`enforcement
`of COPPA
`requirements. If exercising state-law remedies does not
`stand as an obstacle to COPPA in purpose or effect, then
`those remedies are treatments consistent with COPPA. The
`panel concluded that COPPA’s preemption clause does not
`bar state-law causes of action that are parallel to, or proscribe
`the same conduct forbidden by, COPPA. Accordingly,
`express preemption does not apply to the plaintiff class’s
`claims. Second, even
`if express preemption
`is not
`applicable, preemptive intent may be inferred through
`conflict preemption principles. The panel held that although
`express and conflict preemption are analytically distinct
`inquiries, they effectively collapse into one when the
`preemption clause uses the term “inconsistent.” For the
`same reasons that the panel concluded there was no express
`preemption, the panel concluded that conflict preemption did
`not bar the plaintiffs’ claims.
`The panel reversed the district court’s dismissal on
`preemption grounds, and remanded so that the district court
`could consider in the first instance the alternative
`arguments for dismissal, to the extent those arguments were
`properly preserved.
`
`
`
`
`
`
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`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`5
`
`COUNSEL
`
`David S. Golub (argued), Steven L. Bloch, and Ian W. Sloss,
`Silver Golub & Teitell LLP, Stamford, Connecticut;
`Jonathan K. Levine, Elizabeth C. Pritzker, and Caroline C.
`Corbitt, Pritzker Levine LLP, Emeryville, California;
`Edward F. Haber, Shapiro Haber & Urmy LLP, Boston,
`Massachusetts; for Plaintiffs Appellants.
`
`Edith Ramirez (argued), Adam A. Cooke (argued), Michelle
`A. Kisloff, and Jo-Ann Tamila Sagar, Hogan Lovells US
`LLP, Washington, D.C.; Christopher Cox, Hogan Lovells
`US LLP, Menlo Park, California; Helen Yiea Trac, Hogan
`Lovells LLP, San Francisco, California; Christopher Chorba
`and Jeremy S. Smith, Gibson Dunn & Crutcher LLP, Los
`Angeles, California; Anna Hsia, Zwillgen Law LLP, San
`Francisco, California; Jefferey Landis and Adya Baker,
`Zwillgen Law PLLC, Washington, D.C.; Jonathan H.
`Blavin, Munger Tolles & Olson LLP, San Francisco,
`California; Jordan D. Segall and Ariel T. Teshuva, Munger
`Tolles & Olson LLP, Los Angeles, California; Michael J.
`Saltz and Elana R. Levine, Jacobson Russell Saltz Nassim &
`De La Torre LLP, Los Angeles, California; Jeremy S.
`Goldman, Frankfurt Kurnit Klein & Selz PC, Los Angeles,
`California; David E. Fink and Sarah E. Diamond, Venable
`LLP, Los Angeles, California; Angel A. Garganta, Venable
`LLP, San Francisco, California; for Defendants-Appellees.
`
`Derek L. Shaffer, Quinn Emanuel Urquhart & Sullivan LLP,
`Washington, D.C.; Tyler S. Badgley, United States Chamber
`Litigation Center, Washington, D.C.; for Amicus Curiae
`Chamber of Commerce of the United States of America.
`
`
`
`
`
`Case: 21-16281, 12/28/2022, ID: 12618937, DktEntry: 59-1, Page 6 of 14
`
`6
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`OPINION
`
`
`McKEOWN, Circuit Judge:
`
`
`The Children’s Online Privacy Protection Act
`(“COPPA”), 15 U.S.C. §§ 6501–06, gives the Federal Trade
`Commission (“FTC”) authority to regulate the online
`collection of personal identifying information about children
`under the age of 13. The statute includes a preemption
`clause that provides that “[no] State or local government
`may impose any liability . . . inconsistent with the treatment
`of those activities or actions under this section.” Id. §
`6502(d). Hewing closely to the language of the preemption
`clause, we determine that Congress intended to preempt
`inconsistent state laws, not state laws that are consistent with
`COPPA’s substantive requirements, such as the state law
`causes of action pleaded in the complaint here.
`BACKGROUND
`Google, best known for its popular search engine, also
`owns YouTube, a widely used online video-sharing
`platform. YouTube videos are particularly popular among
`children, who increasingly have smartphones and tablets that
`allow them to access the platform without age verification.
`As a testament to YouTube’s popularity among kids, several
`popular
`toy and cartoon brands maintain YouTube
`“channels,” where they post content and run advertisements
`designed to appeal to young audiences.
`Google’s targeted advertising is aided by sophisticated
`technology that delivers curated, customized advertising
`based on information about specific users. Its tracking tools
`can keep tabs on users’ search history, video viewing
`history, personal contacts, browsing history,
`location
`
`
`
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`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`7
`
`information, and several other bits of information about
`users’ habits and preferences, including activity on websites
`and platforms not owned by Google. Together, these pieces
`of information comprise detailed individual “profiles” of
`users’ attributes and behaviors, extremely valuable tools for
`the advertisers who seek to capitalize on this deep trove of
`information about their targeted audiences. The revenue
`from these targeted ads is split between Google and the
`owners of the relevant YouTube channels; indeed, Google,
`whose search and video platforms are largely free to its
`users, makes most of its money through ad revenue.
`Google’s technology depends partly on what FTC
`regulations call “persistent identifiers,” information “that
`can be used to recognize a user over time and across different
`Web sites or online services.” 16 C.F.R. § 312.2. Examples
`include users’ Internet Protocol addresses (“IP addresses”),
`numerical labels assigned to each device connected to the
`Internet. Google tracks users’ IP addresses on all webpages
`using Google’s advertising services. In 2013, the FTC
`adopted regulations under COPPA that barred the collection
`of children’s “persistent
`identifiers” without parental
`consent. 16 C.F.R. §§ 312.2, 312.5.
`In this putative class action, plaintiffs are several minor
`children (collectively “the Children”) suing
`through
`guardians ad litem, alleging that Google used persistent
`identifiers to collect data and track their online behavior
`surreptitiously and without their consent. They seek
`damages and injunctive relief, asserting only state law
`claims: invasion of privacy, unjust enrichment, consumer
`protection violations, and unfair business practices, arising
`under the constitutional, statutory, and common law of
`California, Colorado, Indiana, Massachusetts, New Jersey,
`and Tennessee. The parties agree that all of the claims allege
`
`
`
`Case: 21-16281, 12/28/2022, ID: 12618937, DktEntry: 59-1, Page 8 of 14
`
`8
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`conduct that would violate COPPA’s requirement that child-
`directed online services give notice and obtain “verifiable
`parental consent” before collecting persistent identifiers.
`The complaint names two sets of defendants. First are
`Google LLC and YouTube, LLC, which together own and
`operate the YouTube platform (collectively “Google”).
`Second are numerous content creators that uploaded child-
`directed content to YouTube, including major toy brands and
`a television network that showcases cartoons (collectively
`the “Channel Owners”). Although the Children plead only
`state law causes of action, they also allege that Google’s data
`collection activities violated COPPA, and that Google
`falsely represented that COPPA’s requirements did not
`apply to YouTube, reasoning that it was a platform for
`adults, even while knowing that children use the platform.
`The complaint alleges that Google did not configure
`YouTube to comply with COPPA until January 2020, after
`reaching a settlement with the FTC and the New York
`Attorney General in the fall of 2019. As for the Channel
`Owners, the complaint alleges that they lured children to
`their channels, knowing that the children who viewed
`content on YouTube would be tracked, profiled, and targeted
`by Google for behavioral advertising.
`The district court dismissed the Second Amended
`Complaint, concluding that the Children’s claims were
`expressly preempted by COPPA, 15 U.S.C. § 6502(d). The
`Children filed a Third Amended Complaint, adding
`additional details about the allegedly deceptive conduct.
`The court again held that the “core allegations” in that
`complaint were “squarely covered, and preempted, by
`COPPA.” Regarding the deceptive conduct amendments,
`the court held that the Children had again “failed to allege
`deception beyond what is regulated by COPPA.” The court
`
`
`
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`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`9
`
`granted the Children leave to file another amended
`complaint “if they can substitute proper plaintiffs to
`represent persons in the 13-16 age range”—i.e., older than
`COPPA’s cutoff at 13 years old. The Children informed the
`district court that they did not intend to further amend and
`filed this appeal instead.
`ANALYSIS
`Under COPPA and its regulations, companies that
`operate websites and online services marketed toward
`children must provide certain disclosures about their data
`collection activities and must safeguard the confidentiality,
`security, and integrity of the children’s personal online
`information. 15 U.S.C. § 6501–06; 16 C.F.R. §§ 312.1–13.
`COPPA does not authorize a private right of action. Rather,
`the statute confers enforcement authority on the FTC, 15
`U.S.C. § 6505(a), and on state attorneys general, who must
`notify the FTC and cooperate with it to bring civil actions as
`parens patriae, id. § 6504(a). Several other specified
`agencies retain enforcement authority over the entities that
`they oversee. Id. § 6505(b).
` This appeal presents the question whether COPPA
`preempts state law claims based on underlying conduct that
`also violates COPPA’s regulations. Preemption derives
`from the Supremacy Clause, which “invalidates state laws
`that interfere with, or are contrary to federal law.”
`Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S.
`707, 712–13 (1985) (quotation and citation omitted). The
`Supreme Court has identified “three different types of
`preemption”—express, conflict, and field. Murphy v.
`NCAA, 138 S. Ct. 1461, 1480 (2018). The district court
`based its dismissal on express preemption; Google and the
`Channel Owners argue in the alternative that the claims are
`
`
`
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`
`10
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`conflict-preempted. Field preemption was not argued by any
`party and so we do not reach that question here. We review
`de novo the district court’s dismissal of the complaint on
`preemption grounds. Metrophones Telecomms., Inc. v.
`Glob. Crossing Telecomms., Inc., 423 F.3d 1056, 1063 (9th
`Cir. 2005), aff’d, 550 U.S. 45 (2007).
`I. Express Preemption
`The “clear statement” rule provides that “Congress may
`expressly preempt state law by enacting a clear statement to
`that effect.” In re Volkswagen “Clean Diesel” Mktg., Sales
`Pracs., & Prod. Liab. Litig., 959 F.3d 1201, 1211 (9th Cir.
`2020), cert. denied sub nom. Volkswagen Grp. of Am. v.
`Env’t Prot. Comm’n, 142 S. Ct. 521 (2021). Express
`preemption is a question of statutory construction, requiring
`a court to look to the plain wording of the statute and
`surrounding statutory framework to determine whether
`Congress intended to preempt state law. Id.; Nat’l R.R.
`Passenger Corp. v. Su, 41 F.4th 1147, 1152–53 (9th Cir.
`2022). Of course, congressional purpose “is the ultimate
`touchstone in every pre-emption case,” Altria Grp. v. Good,
`555 U.S. 70, 76 (2008) (quotation and citation omitted), but
`the plain wording of the express preemption clause
`“necessarily contains the best evidence of Congress’[s] pre-
`emptive intent,” Puerto Rico v. Franklin Calif. Tax-Free Tr.,
`579 U.S. 115, 125 (2016) (citation omitted).1
`COPPA’s preemption clause provides:
`No State or local government may impose
`any liability for commercial activities or actions
`by operators in interstate or foreign commerce
`
`1 We assume without deciding that the presumption against preemption
`does not apply.
`
`
`
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`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`11
`
`in connection with an activity or action
`described in this chapter that is inconsistent
`with the treatment of those activities or
`actions under this section.
`
`15 U.S.C. § 6502(d) (emphasis added).
`Although the word “treatment” appears unique to
`COPPA’s preemption clause, we note the similarity between
`this provision and other preemption clauses barring
`“inconsistent” state laws. Our decisions in Metrophones,
`Ishikawa, and Beffa each involved clauses preempting state
`laws “inconsistent” with federal statutes or regulations.
`Metrophones, 423 F.3d at 1072 (statute preempted “State
`requirements that are inconsistent with the Commission’s
`regulations” (quoting 47 U.S.C. § 276(c))); Ishikawa v. Delta
`Airlines, 343 F.3d 1129, 1132 (9th Cir.), amended on denial
`of reh’g, 350 F.3d 915 (9th Cir. 2003) (statute preempted any
`“law, regulation, standard, or order that is inconsistent with
`regulations prescribed under this chapter” (quoting 49 U.S.C.
`§ 45106(a))); Beffa v. Bank of the West, 152 F.3d 1174, 1177
`(9th Cir. 1998) (statute preempted “any provision of the law
`of any State . . . inconsistent with this chapter” or such
`regulations (quoting 12 U.S.C. § 4007(b))).
`In each of these cases, we have read the statutory term
`“inconsistent” in the preemption context to refer to
`contradictory state law requirements, or to requirements that
`stand as obstacles to federal objectives. We do not see that
`Congress’s use of the phrase—“inconsistent with the
`treatment of those activities or actions”—distinguishes this
`case by changing the scope of the preemption clause. In
`these prior cases, where state law was not inconsistent with
`the methods of regulating, or treatment of, activities under
`
`
`
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`
`12
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`found express preemption
`federal statute, we
`the
`inapplicable. See Metrophones, 423 F.3d at 1073 (court
`must ask “whether state law stands as an obstacle to the
`accomplishment and execution of the full purposes and
`objectives of Congress” (quotations and citation omitted));
`Beffa, 152 F.3d at 1177 (statute did not preempt state law
`negligence causes of action “that supplement, rather than
`contradict” federal regulations); Ishikawa, 343 F.3d at 1132
`(“[W]e cannot see how the duty the state common law
`imposed
`. . . could be
`inconsistent with
`the federal
`guidelines, which require the same thing with more
`specificity.”). In each case, we held that the preemption
`clauses did not bar state tort or contract laws imposing
`obligations similar or identical to the substantive federal
`requirements. In short, state laws that “supplement,” 152
`F.3d at 1177, or “require the same thing,” 343 F.3d at 1132,
`as federal law, do not “stand[] as an obstacle,” 423 F.3d at
`1073,
`to Congress’s objectives, and
`so are not
`“inconsistent.”
`Given this context, we are not persuaded that the
`insertion of “treatment” in the preemption clause here
`evinces clear congressional intent to create an exclusive
`remedial scheme for enforcement of COPPA requirements.
`Since the bar on “inconsistent” state laws implicitly
`preserves “consistent” state substantive laws, it would be
`nonsensical to assume Congress intended to simultaneously
`preclude all state remedies for violations of those laws. If
`exercising state-law remedies does not stand as an obstacle
`to COPPA in purpose or effect, then those remedies are
`treatments consistent with COPPA. Cf. Arellano v. Clark
`Cnty. Collection Serv., LLC, 875 F.3d 1213, 1218 (9th Cir.
`2017) (holding the Federal Debt Collection Practices Act
`preempted state debt execution mechanisms because those
`
`
`
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`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`13
`
`mechanisms would enable debt collectors to “evade the
`restrictions of the Act” and thus “thwart enforcement of the
`[Act] and undermine its purpose”).
`Our reasoning comports with the long line of cases
`holding that a state law damages remedy for conduct already
`proscribed by federal regulations is not preempted. Cf. Bates
`v. Dow Agrosciences LLC, 544 U.S. 431, 448 (2005) (“To be
`sure, the threat of a damages remedy will give manufacturers
`an additional cause to comply, but the requirements imposed
`on them under state and federal law do not differ.”);
`Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996) (“Nothing
`in [21 U.S.C.] § 360k denies Florida the right to provide a
`traditional damages remedy for violations of common-law
`duties when those duties parallel federal requirements.”);
`Wigod v. Wells Fargo Bank, 673 F.3d 547, 581 (7th Cir.
`2012) (“The absence of a private right of action from a
`federal statute provides no reason to dismiss a claim under a
`state law just because it refers to or incorporates some
`element of the federal law.”).
`We hold that COPPA’s preemption clause does not bar
`state-law causes of action that are parallel to, or proscribe the
`same conduct forbidden by, COPPA. Express preemption
`therefore does not apply to the Children’s claims.
`II. Conflict Preemption
`Even if express preemption is not applicable, “[p]re-
`emptive intent may also be inferred” through conflict
`preemption principles, Altria, 555 U.S. at 76–77, that is,
`“when state law conflicts with a federal statute,” Ass’n des
`Éleveurs de Canards et d’Oies du Québec v. Bonta, 33 F.4th
`1107, 1114 (9th Cir. 2022). There are two types of conflict
`preemption: (1) “‘conflicts’ that prevent or frustrate the
`accomplishment of a federal objective,” and (2) “‘conflicts’
`
`
`
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`
`14
`
`JONES, ET AL V. GOOGLE LLC, ET AL
`
`that make it impossible for private parties to comply with
`both state and federal law.” Geier v. Am. Honda Motor Co.,
`529 U.S. 861, 873 (2000). Only the first type, which turns
`on Congress’s “objective” in enacting COPPA, is at issue
`here.
`Although express and conflict preemption are
`analytically distinct inquiries, they effectively collapse into
`one when
`the preemption clause uses
`the
`term
`“inconsistent.” Metrophones, 423 F.3d at 1073. Under
`either approach, the question is “whether ‘state law stands as
`an obstacle to the accomplishment and execution of the full
`purposes and objectives of Congress’” or the regulatory
`agency with rulemaking authority. Id. (quoting Gade v.
`Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).
`For the same reasons that we conclude there is no express
`preemption, we conclude that conflict preemption does not
`bar the Children’s claims. We reverse the district court’s
`dismissal of the third amended complaint on preemption
`grounds. We remand so that the district court can consider
`in the first instance the alternative arguments for dismissal,
`to the extent those arguments were properly preserved.
`REVERSED AND REMANDED.
`
`
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