Google May 30, 2013 motion to dismiss Android data ... - Main Justice

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page1 of 2812345678910111213141516171819202122232425262728DAVID H. KRAMER, State Bar No. 168452MICHAEL H. RUBIN, State Bar No. 214636EVAN M. W. STERN, State Bar No. 264851WILSON SONSINI GOODRICH & ROSATIProfessional Corporation650 Page Mill RoadPalo Alto, CA 94304-1050Telephone: (650) 493-9300Facsimile: (650) 493-6811Email: mrubin@wsgr.comBRIAN M. WILLENWILSON SONSINI GOODRICH & ROSATIProfessional Corporation1301 Avenue of the Americas, 40th FloorNew York, NY 10019Telephone: (212) 497-7700Facsimile: (212) 999-5899Attorneys for DefendantIN RE: GOOGLE ANDROIDCONSUMER PRIVACY LITIGATIONThis Document Relates to:ALL CASESUNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION)))))))))))))))))))))))))))))NO. 11-MD-02264 JSWMDL No. 2264Member Cases:No. C 11-02157-JSWNo. C 11-02230-JSWNo. C 11-02427-JSWNo. C 11-03688-JSWNo. C 11-04241-JSWNo. C 11-04429-JSWNo. C 11-04506-JSWNo. C 11-04573-JSWDEFENDANT’S NOTICE OFMOTION AND MOTION TODISMISS SECOND AMENDEDCONSOLIDATED CLASS ACTIONCOMPLAINT; SUPPORTINGMEMORANDUM OF POINTS ANDAUTHORITIESHearing Date: October 4, 2013Time: 9:00 a.m.Before: Honorable Jeffrey S. WhiteDEFENDANT’S MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSW

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page2 of 281234567891011121314NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’SECOND AMENDED CONSOLIDATED CLASS ACTION COMPLAINTTO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE that at 9:00 a.m. on October 4, 2013, in the courtroom of theHonorable Jeffrey S. White, located at the Phillip Burton Federal Building & United States Courthouse,450 Golden Gate Avenue, 19th Floor, San Francisco, CA 94102, Defendant Google Inc.(“Google”), through its attorneys of record, will, and hereby does, move for an order dismissingPlaintiffs’ Second Amended Consolidated Class Action Complaint with prejudice under FederalRules of Civil Procedure 12(b)(1) and 12(b)(6).This Motion is based on this Notice of Motion and Motion, the Memorandum of Pointsand Authorities, the Declaration of Michael H. Rubin and the exhibits thereto, the Court’s filesand records in this action, including Google’s Motion to Dismiss Plaintiffs’ First Amended ConsolidatedClass Action Complaint, the arguments of counsel, and any other matter that the Courtmay properly consider.1516171819202122232425262728DEFENDANT’S RENEWED MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSW-i-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page3 of 281TABLE OF CONTENTS2345678910111213141516171819202122232425262728PageTABLE OF AUTHORITIES .........................................................................................................iiiSUMMARY OF ARGUMENT .....................................................................................................viISSUES TO BE DECIDED.............................................................................................................1INTRODUCTION...........................................................................................................................1BACKGROUND.............................................................................................................................1A. The Named Plaintiffs And The Second Amended Complaint ................................1B. Google’s Alleged Collection of Location Data from Android Users......................2C. Collection of User Information by Third-Party Apps .............................................31. Apps And The Information They Collect ...................................................32. Disclosures About Information Collected By Third Party Apps ................4ARGUMENT ..................................................................................................................................6I. PLAINTIFFS LACK ARTICLE III STANDING TO SUE GOOGLE ..............................6A. Plaintiffs’ Allegations of Economic Injury Remain Inadequate .............................7B. Plaintiffs’ Battery Drainage Allegations Do Not Satisfy Article III.......................8C. Plaintiffs’ New Data-Plan Allegations Do Not Establish Standing ......................10II. THE SAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM.............11A. Plaintiffs Fail to State a Claim Under the CFAA..................................................111. The SAC does not plausibly allege “damage” or “loss” ...........................112. The SAC does not plausibly allege $5,000 in aggregate loss ...................133. Plaintiffs fail to state a violation of the CFAA..........................................14B. Plaintiffs Fail to State a Claim Under the UCL ....................................................161. Plaintiffs do not allege a loss of money or property .................................162. Plaintiffs fail to satisfy any of the UCL’s substantive prongs...................173. Plaintiffs do not state a claim for restitution .............................................19CONCLUSION .............................................................................................................................20DEFENDANT’S MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSW-ii-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page4 of 281TABLE OF AUTHORITIES2Page345678910111213141516171819202122232425262728DEFENDANT’S MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSWCASESAshcroft v. Iqbal,556 U.S. 662 (2009) ................................................................................................................ 13AtPac, Inc. v. Aptitude Solutions, Inc.,730 F. Supp. 2d 1174 (E.D. Cal. 2010)................................................................................... 12Barth v. Firestone Tire & Rubber Co.,673 F. Supp. 1466 (N.D. Cal. 1987) ....................................................................................... 14Baugh v. CBS, Inc.,828 F. Supp. 745 (N.D. Cal. 1993) ......................................................................................... 20Birdsong v. Apple Inc.,590 F.3d 955 (9th Cir. 2009)..................................................................................................... 8Bose v. Interclick, Inc.,No. 10 Civ. 9183, 2011 WL 4343517 (S.D.N.Y. Aug. 17, 2011)........................................... 11Clapper v. Amnesty Int’l, USA,133 S. Ct. 1138 (2013) ............................................................................................................ 10Czech v. Wall St. on Demand, Inc.,674 F. Supp. 2d 1102 (D. Minn. 2009) ............................................................................. 12, 15DaimlerChrysler Corp. v. Cuno,547 U.S. 332 (2006) .................................................................................................................. 6Daugherty v. Am. Honda Motor Co.,144 Cal. App. 4th 824 (Cal. Ct. App. 2006) ........................................................................... 19Del Vecchio v. Amazon.com, Inc.,No. C11-366, 2011 WL 6325910 (W.D. Wash. Dec. 1, 2011)............................................... 16Del Vecchio v. Amazon.com, Inc.,No. C11-366, 2012 WL 1997697 (W.D. Wash. June 1, 2012) ..........................................12-14Frezza v. Google Inc.,No. 5:12-cv-00237, 2013 WL 1736788 (N.D. Cal. Apr. 22, 2013) ........................................ 20Goodman v. HTC Am., Inc.,No. C11-1793, 2012 WL 2412070 (W.D. Wash. June 26, 2012) ......................................... 7, 9Granfield v. NVIDIA Corp.,No. C11-05403, 2012 WL 2847575 (N.D. Cal. July 11, 2012) .............................................. 20Hutchens v. Alameda County Social Servs. Agency,No. C-06-06870, 2008 WL 4193046 (N.D. Cal. Sept. 10, 2008) ........................................... 13In re iPhone Application Litig.,844 F. Supp. 2d 1040 (N.D. Cal. 2012) ...........................................................................passim-iii-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page6 of 2812345678910111213141516171819Summers v. Earth Island Inst.,555 U.S. 488 (2009) ................................................................................................................ 10Swartz v. KPMG LLP,476 F.3d 756 (9th Cir. 2007)..................................................................................................... 5United States v. Nosal,676 F.3d 854 (9th Cir. 2012)................................................................................................... 15Warth v. Seldin,422 U.S. 490 (1975) .................................................................................................................. 8Whitmore v. Arkansas,495 U.S. 149 (1990) .................................................................................................................. 6Zeisel v. Diamond Foods, Inc.,No. C 10-01192, 2011 WL 2221113 (N.D. Cal. June 7, 2011) .............................................. 16STATUTES18 U.S.C. § 1030(a)(5)(A) ............................................................................................................ 1418 U.S.C. § 1030(a)(2)(C)............................................................................................................. 1618 U.S.C. § 1030(a)(5) .................................................................................................................. 1518 U.S.C. § 1030(c)(4)(A)(i)(I)..................................................................................................... 1318 U.S.C. § 1030(e)(11) ................................................................................................................ 1218 U.S.C. § 1030(g) ...................................................................................................................... 11Cal. Bus. & Professions Code § 17204 ......................................................................................... 16RULESFed. R. Evid. 201(b) ........................................................................................................................ 6202122232425262728DEFENDANT’S MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSW-v-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page7 of 2812345678910111213141516171819202122232425262728SUMMARY OF ARGUMENTPlaintiffs’ Second Amended Consolidated Class Action Complaint (“SAC”) pares downthe claims and parties in this case, but still fails to state a viable claim against Google. Like itspredecessor, the SAC should be dismissed, this time with prejudice.First, Plaintiffs lack Article III standing. This Court has already rejected Plaintiffs’ claimthat they suffered a cognizable injury from either the supposedly diminished value of their personalinformation or their claimed overpayment for Android devices. The SAC does nothing to rehabilitatethose theories. Nor do Plaintiffs’ generalized references to battery drainage resulting fromusers’ activation of the “GPS” function satisfy Article III. Even if the use of battery power could,in theory, amount to a constitutional injury, Plaintiffs’ allegations here fail because: (1) they donot allege that any of the named plaintiffs themselves actually suffered any personal injury; (2) thealleged battery drainage is not “fairly traceable” to Google’s alleged wrongdoing, but instead resultsfrom Android users’ own voluntary use of location-based services; and (3) the alleged harmwould not be redressed by a favorable decision, because none of the remedies that Plaintiffs seekwould prevent the drainage of their batteries should they choose to activate GPS. Plaintiffs alsomake some cursory new allegations about “data plan utilization,” but those are wholly deficient.Second, Plaintiffs cannot state a claim under the Computer Fraud and Abuse Act, 18U.S.C. § 1030 (“CFAA”). The Court dismissed Plaintiffs’ previous CFAA claim for failing to allege“damage” and “loss” within the meaning of the statute and for failing to allege the requisite$5,000 in total loss. The SAC does nothing to cure these defects. But even if Plaintiffs couldmeet the CFAA’s injury requirement, their claim would fail because they do not plausibly allegefacts sufficient to make out a substantive violation of the statute.Third, Plaintiffs fail to state a claim under California’s Unfair Competition Law, Cal. Bus.& Professions Code § 17200 et seq. (“UCL”). The UCL requires Plaintiffs to plead that they “lostmoney or property”—a requirement more stringent than that of Article III—but the SAC does notoffer plausible allegations of such loss. Beyond that, Plaintiffs do not allege the illegality, fraud,or unfairness needed for a UCL claim, and they also do not plead facts entitling them to the limitedform of restitution that is the only form of monetary relief authorized by the UCL.DEFENDANT’S MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSW-vi-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page8 of 2812345678910111213141516171819202122232425262728ISSUES TO BE DECIDED1. Do Plaintiffs have Article III standing to sue Google?2. Have Plaintiffs alleged the “damage or loss” required to sue under the CFAA and,if so, do they state a legally cognizable claim under that statute?3. Have Plaintiffs alleged the “loss of money or property” required to sue under theUCL and, if so, do they state a legally cognizable claim under that statute?INTRODUCTIONThis is Plaintiffs’ third attempt to plead claims against Google arising from their use of devicesrunning the Android Operating System (“Android OS”).Plaintiffs’ latest Complaint, theSAC, is considerably leaner than its predecessors, as Plaintiffs have abandoned the majority of thecauses of action that they previously asserted and now are pursuing claims only against Googleitself. But the two remaining statutory claims are still deficient. While Plaintiffs have made a fewcosmetic changes in the wake of this Court’s Order dismissing the First Amended ConsolidatedClass Action Complaint (“FAC”), they have not—and cannot—overcome the fundamental problemswith their allegations that this Court and Google have identified. Plaintiffs still do not allegethe facts necessary for Article III standing or to state a viable claim under the CFAA or the UCL.The SAC should be dismissed, and Plaintiffs should not be given another chance to amend.BACKGROUNDThe factual background to this case is set out in Google’s prior motion to dismiss. Defendants’Motion to Dismiss FAC at 3-8 (Mar. 23, 2012), Dkt. No. 29 (“Google MTD”). To avoidrepetition, we highlight a few points relevant to Plaintiffs’ latest complaint.A. The Named Plaintiffs And The Second Amended ComplaintThe named plaintiffs are six individuals who each chose to buy an Android mobile deviceand to download certain software applications from third-party developers (“Apps”). SAC 35-46, 78-87. Plaintiffs originally asserted claims against Google—as well as AdMob, Inc. andAdWhirl, Inc.—under the CFAA, the UCL, and various other California statutes, constitutionalprovisions, and common-law rules. The Court dismissed all of those claims. Order on Motion ToDismiss and Motion To Strike at 6-21 (Mar. 26, 2013), Dkt. No. 49 (“MTD Order”). In response,Plaintiffs filed the SAC. They now are suing only under the CFAA and the UCL. SAC 47-49,DEFENDANT’S MOTION TO DISMISSCASE NO. 3:11-MD-02264-JSW-1-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page10 of 2812345678910111213141516171819202122232425C. Collection of User Information by Third-Party AppsThe SAC also asserts claims against Google based on the actions of certain third-partyApps that Plaintiffs chose to install on their devices. Plaintiffs allege that those Apps collected“personal” information from their devices. SAC 4, 50-66. These claims are premised on theallegation that Google facilitates that collection through software it provides to App developers.Putting this theory in proper context requires further detail about Android Apps, the informationthe Apps supposedly collected, and the relationship between Google and the developers who areresponsible for the design and development of those Apps.1. Apps And The Information They CollectApps are software programs that run on Android devices. SAC 50-53. They can be acquiredfrom Google’s online market (now called “Google Play”) or from other sources. Id. 51.Because Android is an open distribution channel, software developers can make their Apps availablewithout prescreening or preapproval by Google. Id. 59-60. The quantity and diversity ofApps available to Android users is staggering. Id. 52-53. While this plethora of Apps enhancesthe enjoyment and utility of Android devices, there is no requirement that an Android user downloada particular App or any Apps at all. That choice is entirely up to the user.Most Android Apps are provided by third-party App developers. SAC 53. That includeseach of the Apps at issue here: Foursquare; Groupon; Advanced Task Killer; Angry Birds; andPandora. One or more the named plaintiffs chose to download those Apps to their Android devices.Id. 78-87. Although Google did not design the Apps or decide what features they shouldhave, Plaintiffs seek to hold Google responsible for the Apps’ alleged data collection. Plaintiffs’theory is that Google helped facilitate that collection by providing App developers with softwaretools: “hooks” that are a part of the Android OS itself and software development kits that take advantageof those hooks. Id. 54-62. According to Plaintiffs, App developers can use these toolsto access and gather information about the user’s device and how it is being used. Id. 54, 56.262728(...continued from previous page)longer names AdMob or AdWhirl as defendants or even tries to state claims against them. CompareSAC 47-49 with FAC 41-43.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-3-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page11 of 28123While Plaintiffs repeatedly assert that their claims target the collection of sensitive “personal”information (SAC 4, 10-14, 66, 76-77, 93-97), the actual data gathered by the Apps at4issue is nothing of the sort. This case does not involve information like email addresses, socialsecuritynumbers, phone numbers, or dates of birth.Instead, the information that the Apps in5678910111213141516171819202122232425question are supposed to have collected includes things like “identity of App,” “screen color depthand/or resolution,” “user’s audio settings,” and “URL/title for current page.” Id. 78, 80, 82, 84,86. 2 Only one of the Apps (Pandora) is alleged to have collected any information about users, butthat data is wholly generic (age, gender, zip code, country). Id. 86. Likewise, only one App(Foursquare) collected information about users’ location, which is unsurprising given that Foursquareis a location-based social networking service. Id. 78. Moreover, despite Plaintiffs’ strayreference to “UUID,” a number that allegedly identifies a given Android device (id. 63), none ofthe Apps referenced in the SAC are actually alleged to have collected a UUID or any other uniqueidentifying number (id. 78-86). In short, the data allegedly accessed by the Apps does not satisfyeven Plaintiffs’ definition of “personal information” (id. 69).2. Disclosures About Information Collected By Third Party AppsPlaintiffs cannot plead around the fact that Google takes a number of steps to ensure thatApps’ collection of information is properly disclosed to Android users.First, Google’s own Privacy Policy (SAC 110-112) explains that third party applicationsmay collect information from users:Third Party Applications – Google may make available third party applications,such as gadgets or extensions, through its services. The information collected byGoogle when you enable a third party application is processed under this PrivacyPolicy. Information collected by the third party application provider is governed bytheir privacy policies.Rubin Decl. Ex. A, p. 2. This disclosure makes users aware of the kind of data-collection at issuehere, and expressly refers users to the Apps’ own privacy policies that cover such collections.2627282 Some of the Apps at issue collected even less. For example, the Advanced Task Killer Appcollected nothing more than the “identity of App (name, ID, web address), network, and user’saudio settings” (SAC 82), while Angry Birds collected only the “identity of App” (id. 84).DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-4-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page12 of 281234567891011121314151617181920212223Second, Google’s agreements with App developers expressly require them to inform Androidusers what information their Apps may collect and to protect the privacy of such information.SAC 53, 59, 61 (referencing Android “Developer Distribution Agreement”). 3 ThisAgreement gives specific instruction to developers about what they must disclose to users:If the users provide you with, or your Product accesses or uses, user names, passwords,or other login information or personal information, you must make the usersaware that the information will be available to your Product, and you must providelegally adequate privacy notice and protection for those users. Further, your Productmay only use that information for the limited purposes for which the user hasgiven you permission to do so.Rubin Decl. Ex. B, p. 3 ( 4.3). Developers thus must tell Android users what personal informationtheir Apps can access, and users must acknowledge those “Permissions” before downloadingand using the App. SAC 61 (admitting that “Google requires Android Apps to notify usersof some of the data sources the App intends to access on their devices”). 4Third, as required by the Developer Agreement, each of the Apps at issue here is governedby its own privacy policy that explains precisely what information those Apps access and collect.For example, Plaintiffs allege that the Foursquare App, which is premised on users publicizingtheir location, collected location information and certain other information about how the App wasbeing used. SAC 78. But that is precisely what Foursquare’s Privacy Policy discloses:When you use the Service, foursquare automatically receives and records informationon our server logs from your browser or mobile platform, including yourlocation, IP address, cookie information, and the page you requested. . . . We mayprovide aggregate information to our partners about how our customers, collectively,use our site, so that our partners may also understand how often people use theirservices and our Service.Rubin Decl. Ex. D, p. 1. Similarly, Foursquare’s “permissions” specifically tell users that the Appwill be able to access “coarse” and “fine location sources” (including those identified through24252627283 The SAC’s repeated references to this document ( 53, 58-60) make it appropriate for theCourt to consider it under the incorporation-by-reference doctrine. See, e g., In re iPhone ApplicationLitig., 844 F. Supp. 2d 1040, 1076 (N.D. Cal. 2012) (“iPhone II”). That doctrine preventsplaintiffs from “deliberately omitting documents upon which their claims are based.” Swartz v.KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (internal quotation marks omitted).4 Plaintiffs try to escape the import of this requirement by alleging that “Google does not requireApps to ask permission to access some form of the device ID.” SAC 61. But that is irrele-(continued...)DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-5-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page13 of 2812GPS) and may be able “to discover general information about what you are doing with the device,potentially including personal or private information.” Rubin Decl. Ex. I, p. 1. The other Apps3have similar privacy policies and permissions.See Rubin Decl. Exs. C, E-H, J-K; see also45678910111213141516171819Yuncker v. Pandora Media, Inc., No. 11-cv-3113, Dkt No. 55-1 (Pandora Privacy Policy). Thecourt is entitled to take judicial notice of these documents, the accuracy of which “cannot reasonablybe questioned.” Fed. R. Evid. 201(b). Along with the other documents incorporated by referencein the SAC, these disclosures undermine any suggestion Android users, including Plaintiffs,lacked notice of the information that the Apps collected (SAC 66, 113).ARGUMENTPlaintiffs’ two theories of liability suffer from similar flaws: neither by collecting locationinformation nor by allegedly facilitating App developers in their data collection has Google causedthe named Plaintiffs any cognizable injury or violated either the CFAA or UCL.I. PLAINTIFFS LACK ARTICLE III STANDING TO SUE GOOGLE“No principle is more fundamental to the judiciary’s proper role in our system of governmentthan the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks omitted).“To meet the standing requirements of Article III, [a] plaintiff must allege personal injuryfairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requestedrelief.”Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation marks omitted).202122232425“The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standingrequirements. A federal court is powerless to create its own jurisdiction by embellishing otherwisedeficient allegations of standing.” Whitmore v. Arkansas, 495 U.S. 149, 155-156 (1990).In dismissing the FAC, this Court rejected Plaintiffs’ claims that they have standing basedon either (1) the alleged diminution in the value of their personal information or (2) their allegedoverpayment for Android devices. MTD Order at 7-10. The SAC does not fix those problems.262728(...continued from previous page)vant here, because, as explained above, none of the Apps at issue in the SAC are actually allegedto collect information about a device ID. Id. 78-86.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-6-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page14 of 2812345678910111213141516171819Nor do Plaintiffs provide any new allegations in support of their claim based on battery drainage.But even if the consumption of battery power could in some circumstances amount to an ArticleIII injury, Plaintiffs’ invocation of that theory here is insufficient for multiple reasons. Finally, theSAC’s cursory new allegations about data-plan utilization fail on similar grounds.A. Plaintiffs’ Allegations of Economic Injury Remain InadequateThe allegations of diminished value of Plaintiffs’ “personal information” in the SAC areidentical to those that the Court found lacking in the FAC. Compare SAC 88-96 with FAC 86-94. Plaintiffs thus still “have not alleged facts sufficient to show injury based on the purporteddiminution in value of their PII.” MTD Order at 8. By failing to respond to this Court’s ruling,Plaintiffs have abandoned this theory of standing.The Court likewise rejected Plaintiffs’ claims that they overpaid for their Android devices.MTD Order at 9-10. Plaintiffs have made no meaningful changes in response. While they nowallege how much the named plaintiffs paid for their phones (SAC 36, 38, 40, 42, 44, 46), thatdoes nothing to suggest that they overpaid, much less that they did so because of Google’ allegedwrongdoing. The SAC’s unsupported allegation that “Plaintiffs paid more for their phones thanthey otherwise would have had they known the true nature of the phones’ involuntary sharing oftheir personal information” (id. 97) is not enough. This is a conclusion couched as a factual allegation.plausible.There are no facts pleaded anywhere in the SAC that make this conclusion remotely202122232425262728Plaintiffs do not suggest how additional knowledge about the phones’ alleged datasharingwould have affected the price of the devices or how much Plaintiffs would have been willingor able to pay. Moreover, like the plaintiff in Pirozzi v. Apple Inc., No. 12-cv-01529, 2012WL 6652453, at *4 (N.D. Cal. Dec. 20, 2012), on which this Court relied in dismissing Plaintiffs’overpayment allegations (MTD Order at 9), Plaintiffs here fail “to allege specifically which statements[they] found material to [their] decision to purchase” an Android device. Plaintiffs’ barebonesallegations are still insufficient to create Article III standing. 55 There is another fundamental problem with Plaintiffs’ effort to establish standing based on anoverpayment theory. In Pirozzi and the other cases addressing overpayment as a basis for standing,the plaintiffs bought a product sold to them by the defendant. See, e.g., Goodman v. HTCAm., Inc., No. C11-1793, 2012 WL 2412070, at *5-6 (W.D. Wash. June 26, 2012). That is not the(continued...)DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-7-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page15 of 281234567891011121314151617181920212223B. Plaintiffs’ Battery Drainage Allegations Do Not Satisfy Article IIIPlaintiffs also try to create standing based on the claim that the use of GPS functionality toprovide location services is “resource intensive and consumes battery life on Android mobilephones.” SAC 98. Plaintiffs’ invocation of this theory falls short of what Article III requires. 6First, the SAC does not plead that any of the named plaintiffs actually suffered a personalinjury resulting from battery drainage. A “plaintiff’s complaint must establish that he has a ‘personalstake’ in the alleged dispute, and that the alleged injury suffered is particularized as to him.”Raines, 521 U.S. at 818-19; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 & n.1(1992) (“the injury must affect the plaintiff in a personal and individual way”); Warth v. Seldin,422 U.S. 490, 502 (1975) (applying personal injury requirement to named plaintiffs in putativeclass action). Plaintiffs here have not done so. Their battery claims are generic, speculative, andhypothetical: they amount to the abstract assertion that using the GPS function on Android devicescauses drain on the battery, requiring more frequent charging, which may shorten the overallbattery life. SAC 98-102, 30-34. But these allegations are not tied to the actual experience ofany of the named plaintiffs. The SAC does not even allege that those individuals ever actuallyused GPS, the only cause Plaintiffs identify for the battery consumption (id. 98). And there certainlyis no concrete allegation that the specific batteries on the named plaintiffs’ devices werecompromised in their functionality or value, had to be replaced or repaired, or were drained in away that was unreasonable or at odds with the ordinary operation of an electronic device. In short,Plaintiffs have failed to allege “specific, concrete facts demonstrating” that they were personallyharmed by the purported battery drainage. Warth, 422 U.S. at 508; accord Birdsong v. Apple Inc.,590 F.3d 955, 960-61 (9th Cir. 2009) (no standing where named plaintiffs alleged potential harmto others but the alleged injury was not “concrete and particularized as to themselves”).2425262728(...continued from previous page)case here. Plaintiffs do not allege that Google actually sold the phones at issue or had anything todo with their pricing. Thus, even if Plaintiffs had plausibly alleged overpayment, there would beno basis for claiming that it was caused by Google or would be redressable by suing Google.6 While this Court suggested that the allegations about diminished battery capacity in the FACcould support standing (MTD Order at 8-9), the Court did not address the arguments presented(continued...)DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-8-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page16 of 2812345678Second, even if the alleged battery drainage had injured Plaintiffs, it still would not becognizable under Article III because the SAC does not plausibly allege that the injury was “fairlytraceable” to Google’s alleged wrongdoing. The defendant’s misconduct must be an actual causeof the plaintiff’s harm. Lujan, 504 U.S. at 560. That is not the situation here. Plaintiffs assert thereduction in battery life results from the “acquisition of location data on Android devices” via“GPS satellite position data.” SAC 98. But Google is not responsible for the activation of GPSfunctionality on Android devices, and its alleged actions have nothing to do with the resulting batteryharm.Plaintiffs admit that the decision to use GPS is made voluntarily by Android users9when they “opt-in” to location-based services. Id. 30. It is that knowing choice by users, not10anything that Google is alleged to have done, that causes the purported battery drainage. 7111213141516171819202122232425262728Plaintiffsmake no allegation that Google’s receipt of location data (or any subsequent use of that data)has any deleterious effect on Android device batteries. Nor could they. Because there is no basisfor concluding that Google’s alleged misconduct caused any battery drainage, this alleged injurycannot create standing here. 8Third, Plaintiffs’ alleged battery injury would not be redressed by a favorable decision inthis case. Plaintiffs do not plead that the relief they seek—which includes an injunction barringGoogle from accessing, collecting, or transmitting users’ personal information (SAC, Prayer For(...continued from previous page)below, and Google did not have a chance to address the significant differences between the allegationshere and those in Goodman v. HTC, on which the Court relied. Infra n. 8.7 Plaintiffs’ battery-drainage theory is even more disconnected from their claims that Googlefacilitates the collection of personal information by third-party Apps. With only one exception(Foursquare), none of the Apps at issue accessed any location information at all (SAC 78-87),and the use of those Apps thus had nothing whatsoever to do with the alleged battery injury. Evenas to Foursquare, Google’s alleged misconduct—providing the App developer with code that allowedit to collect information from users of the App—is unrelated to any battery dissipation thatallegedly occurs when those users choose to engage GPS.8 This case differs materially from Goodman (MTD Order at 8). The plaintiffs there sued theactual manufacturer of the phone and the developer of the specific App at issue. They alleged thatdefendants designed and implemented the App to collect “fine” location information that went beyondwhat was disclosed to plaintiffs, was more detailed than necessary for the functioning of theApp, and was specifically responsible for taking an “unwarranted” toll of the phones’ batteries.Goodman, 2012 WL 2412070, at *1-2. None of that applies here. Google neither made thephones or the Apps at issue, and Plaintiffs’ claims are based not on the actual activation of GPSfunctionality but instead on Google’s subsequent receipt of location information, which has nodirect or causal connection to the alleged battery drainage.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-9-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page17 of 28123456789101112Relief F)—would preserve their devices’ batteries. That is not surprising: because Google’salleged collection of users’ location information does not strain users’ batteries in the first place,Plaintiffs’ effort to stop Google from accessing such information will do nothing to protect thosebatteries. Plaintiffs are not asking (and could not reasonably ask) the Court to prevent Androidusers from turning on GPS functionality on their devices or to award any other relief that wouldactually help prevent Android batteries from being run down by users’ activation of location-basedservices. That is fatal to Plaintiffs’ effort to establish standing based on diminished battery capacity.“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court.”Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998).C. Plaintiffs’ New Data-Plan Allegations Do Not Establish StandingAlthough it does not appear in the section labeled “Standing” (SAC 25-34), the SAC offersa new theory of harm—“Data Plan Utilization”—which Plaintiffs may try to use to create13standing (id. 103-105).1415161718192021222324252627This theory appears to be that Google’s alleged collection of informationused a portion of the data that Android users are allocated in their monthly plans. But theseallegations simply are too abstract and speculative. The SAC offers a highly general allegationabout data-plans and overage charges (id. 103), but it says nothing about what data plans thenamed plaintiffs actually had and makes no claim that any Plaintiff incurred actual overage charges,much less charges resulting from Google’s alleged wrongdoing. Plaintiffs merely assert thatthey were “potentially expos[ed]” to such charges. Id. 105. Nor do Plaintiffs plead any factswhatsoever about the nature of the alleged data-plan usage or its effect on them personally. Thereis no basis for concluding that Google actually used any of Plaintiffs’ data (and certainly not morethan a de minimus amount) or that the named plaintiffs suffered any actual monetary harm as aresult of such use. In short, Plaintiffs’ data-plan allegations are precisely the sort of “conjecturalor hypothetical” claims of injury that Article III does not allow. Summers v. Earth Island Inst.,555 U.S. 488, 493 (2009); Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138, 1147 (2013) (explainingthat “allegations of possible future injury are not sufficient” to create standing) (internal quotationmarks omitted) (emphasis in original).28DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-10-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page18 of 2812II.THE SAC SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIMThis Court has already rejected Plaintiffs’ claims under the CFAA and UCL (MTD Order345678910111213141516171819202122232425262728at 11-15), and the SAC does not support a different result. Both of those statutes have their owninjury requirements, which are significantly more demanding than what Article III imposes.Plaintiffs have not satisfied those requirements. In addition, the facts pleaded in the SAC do not,as a matter of law, amount to violations of either the CFAA or the UCL. Plaintiffs’ complaint thusmust be dismissed once more. And the dismissal this time should be with prejudice.A. Plaintiffs Fail to State a Claim Under the CFAAPlaintiffs’ renewed CFAA claims fail for the same reasons this Court and Google identifiedpreviously: (1) Plaintiffs fail to plead that they incurred “damage” or “loss” within the meaningof the statute; (2) Plaintiffs do not allege facts showing that they suffered a “loss” of at least$5,000 in a single year; (3) Plaintiffs do not plausibly allege that Google intentionally causeddamage to Plaintiffs’ devices by transmitting a program or command; and (4) Plaintiffs do notplausibly allege that Google intentionally “accesse[d]” Plaintiffs’ devices “without authorization.”1. The SAC does not plausibly allege “damage” or “loss”A showing of “damage or loss by reason of” a violation of the CFAA is a prerequisite toany private claim. 18 U.S.C. § 1030(g). This injury requirement is more stringent than Article IIIstanding. The CFAA narrowly defines “damage” and “loss”:the term ‘damage’ means any impairment to the integrity or availability of data, a program,a system, or information;the term ‘loss’ means any reasonable cost to any victim, including the cost of respondingto an offense, conducting a damage assessment, and restoring the data, program,system, or information to its condition prior to the offense, and any revenue lost, costincurred, or other consequential damages incurred because of interruption of service.Id. § 1030(e)(8), (11). This Court found that Plaintiffs’ original allegations were not sufficient tosatisfy these definitions (MTD Order at 12), and the SAC does nothing to fix that problem.The allegations about damage and loss in the new complaint are virtually identical to thosein the FAC. Compare SAC 143, 146-147 with FAC 120, 123-124. They fail for the samereasons. Plaintiffs still do nothing more than set forth bare legal conclusions couched as allegationsof fact. See, e.g., Bose v. Interclick, Inc., No. 10 Civ. 9183, 2011 WL 4343517, at *3-4DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-11-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page19 of 281234567891011121314151617181920212223(S.D.N.Y. Aug. 17, 2011). Insofar as Plaintiffs’ vague invocation of “damage” (SAC 146) relieson the allegations about battery drainage and data-plan usage, neither theory meets the CFAA’snarrow definition. Beyond all the problems with those allegations described above (supra pp. 8-10), 9 the SAC does not plausibly plead the use of battery power or data actually resulted in any“impairment” to the “integrity or availability” of the information on their devices. Courts haveconsistently rejected such generalized allegations of “damage” based on battery use or resourceconsumption. See, e.g., iPhone II, 844 F. Supp. 2d at 1068; Czech v. Wall St. on Demand, Inc.,674 F. Supp. 2d 1102, 1115-18 (D. Minn. 2009); accord Mintel Int’l Grp., Ltd. v. Neergheen, No.08-cv-3939, 2010 WL 145786, at *9 (N.D. Ill. Jan. 12, 2010) (“damage” under CFAA limited to“situations in which data is lost or impaired because it was erased or otherwise destroyed, or inwhich computer networks or databases are disabled”).Plaintiffs’ allegations likewise do not support a claim of “loss.” “The definition of ‘loss’itself makes clear Congress’s intent to restrict civil actions” under the CFAA “to the traditionalcomputer ‘hacker’ scenario-where the hacker deletes information, infects computers, or crashesnetworks.” iPhone II, 844 F. Supp. 2d at 1067 (quoting AtPac, Inc. v. Aptitude Solutions, Inc.,730 F. Supp. 2d 1174, 1185 (E.D. Cal. 2010)). There is nothing like that here. The SAC identifiesno tangible “cost” that Plaintiffs suffered as a result of Google’s alleged violation. Plaintiffs donot claim that they suffered actual harm necessitating a “damage assessment,” that they needed tospend money restoring their devices, or that they suffered any “interruption in service.” 18 U.S.C.§ 1030(e)(11). Instead, they assert in conclusory fashion that Plaintiffs “suffered costs incurreddue to Defendants’ utilization of their valuable computer resources, the diminution in value oftheir mobile devices, and the deprivation of the value of their information assets.” SAC 147.This kind of “naked assertion” is wholly inadequate. Del Vecchio v. Amazon.com Inc., No. C11-24252627289 For example, Plaintiffs cannot explain how any injury they suffered based on the use of batteryresources occurred “by reason of” Google’s alleged CFAA violation. As discussed, the consumptionof battery power on Android devices was attributable not to Google, but to users’ voluntaryactivation of GPS, and that power would have been used even if Google had not (allegedly)collected users’ location information. See Czech, 674 F. Supp. 2d at 1113-14 (dismissing CFAAclaim for similar failure to allege loss causation).DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-12-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page20 of 2812345366, 2012 WL 1997697, at *4 (W.D. Wash. June 1, 2012); see also In re Zynga Privacy Litig., No.10-04680, 2011 WL 7479170, at *3 (N.D. Cal. June 15, 2011).2. The SAC does not plausibly allege $5,000 in aggregate lossThe CFAA requires more than just some cognizable damage or loss: the statute requiresPlaintiffs to establish that they suffered a “loss” of at least $5,000 in a single year. 18 U.S.C. §61030(c)(4)(A)(i)(I).In dismissing the FAC, this Court held that Plaintiffs’ allegations of loss78910111213141516171819202122(which were based on the claims of battery drainage) were insufficient to reach that threshold.MTD Order at 12. Plaintiffs have done next to nothing in response. The SAC’s effort to quantifythe loss resulting from “battery life consumed” are identical to those in the previous complaint.Compare SAC 148-149 with FAC 125-126. Plaintiffs still offer no allegations that even tryto put an actual dollar value on any battery-related loss suffered by any individual, and they pleadno facts from which the Court could infer that any such losses exceed $5,000 in a year. 10Moving away from battery life, Plaintiffs offer a conclusory “information and belief” allegationthat Google’s CFAA violations resulted in more than $5,000 in damages (SAC 134) and areference to their claims about data-plan usage (id. 135-138). The former is plainly insufficient.Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); cf. Hutchens v. Alameda County Social Servs.Agency, No. C-06-06870, 2008 WL 4193046, at *5 (N.D. Cal. Sept. 10, 2008) (“information andbelief is not an appropriate form of pleading if the matter is within the personal knowledge of thepleader or ‘presumptively’ within his knowledge”). Likewise, the data-plan claims fail becausethey are entirely hypothetical and do not assert any tangible, much less measurable, loss sufferedby anyone. Supra p. 10. These allegations are “devoid of any basis from which the Court mightreasonably infer that the Plaintiffs experienced a $5,000 ‘loss’” and offer “nothing from which a23242526272810 The only new battery-related allegation in the SAC is the general statement that the cost ofreplacing batteries “can run as high as $70.00 or more.” SAC 102. But, beyond having nothingto do with the experiences of any actual person, this statement only underscores the lack of anyallegation that the named plaintiffs ever actually had to replace the batteries on their phones or incurredany other monetary costs as a result of the supposed battery use. This allegation confirmsthat Plaintiffs’ effort to plead $5,000 in loss relating to battery life has failed.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-13-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page21 of 2812345678calculable loss could be inferred.” Del Vecchio, 2012 WL 1997697, at *5; see also, e.g., iPhoneII, 844 F. Supp. 2d at 1064-69 (dismissing claims for failure to plausibly allege $5,000 loss). 113. Plaintiffs fail to state a violation of the CFAAGoogle has previously explained that Plaintiffs have not stated legally viable claims underthe substantive provisions of the CFAA that they try to invoke. Google MTD at 19-23. The Courtdid not reach those arguments in dismissing the FAC (MTD Order at 11), and Plaintiffs have notmade any changes in their new complaint that affects the analysis. Accordingly, Google rests onthose arguments, which we briefly summarize and supplement here.9Transmission With Intent To Cause Damage.Plaintiffs’ claim under the CFAA’s10111213141516171819202122232425262728“transmission” provision (§ 1030(a)(5)(A)) should be rejected. First, the SAC makes no plausibleallegation that Google actually “cause[d] the transmission” of any code or command to Plaintiffs’devices. Insofar as Plaintiffs’ claims are based on the collection of location information by theAndroid OS, that software was preinstalled on the devices that Plaintiffs purchased from thirdpartyhardware manufacturers (SAC 2-3, 50); it was not transmitted to Plaintiffs in any meaningfulsense of the word. Likewise, insofar as the claims are based on the behavior of the Apps,those programs were not transmitted by Google, but by the third-party developers who designedand supplied the Apps. Merely writing code that those third-parties chose to include in their Appsis not a “transmission” of that code by Google to Plaintiffs’ devices. Second, Plaintiffs fail to allegethat Google intentionally caused damage as required by § 1030(a)(5)(A). As shown above,Plaintiffs have not plausibly pleaded that they suffered any “damage” at all (under the CFAA’sdefinition), and they certainly allege no facts making it plausible that Google intentionally damagedtheir devices. The transmission provision requires a specific intent to cause damage (not just11 It is improper for Plaintiffs to rely on losses supposedly suffered by all members of the putativeclass in trying to satisfy the $5,000 requirement (SAC 138, 149). There is no legitimatebasis for aggregating loss across the whole of a class that has not (and should never be) certified,and whose size and experiences have not been ascertained. Cf. Barth v. Firestone Tire & RubberCo., 673 F. Supp. 1466, 1476 (N.D. Cal. 1987). Nor should Plaintiffs be allowed to aggregate allegedlosses affecting multiple unrelated devices based on distinct instances of alleged wrongdoingoccurring in connection with countless separate actions taken by individual Android users, Appdevelopers, and Google. See, e.g., In re iPhone Application Litig., No. 11-MD-02250, 2011 WL4403963, at *11 (N.D. Cal. Sept. 20, 2011) (dismissing CFAA claims where plaintiffs failed toidentify “the ‘single act’ of harm” that would have allowed aggregation); Google MTD at 18-19.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-14-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page22 of 2812345678910111213141516171819202122232425262728an intent to cause the transmission), but the SAC asserts only that Google “knew or should haveknown” that its conduct would consume Plaintiffs’ “assets and resources” (SAC 143). That isnot enough to plead the requisite intent. Czech, 674 F. Supp. 2d at 1119-20; Kalow & Springnut,LLP v. Commence Corp., No. 07-3442, 2008 WL 2557506, at *3-4 (D.N.J. June 23, 2008).Unauthorized Access. Plaintiffs’ claims under the CFAA’s “unauthorized access” provisions(§§ 1030(a)(5)(B)-(C) (SAC 141-142)) likewise fail on multiple grounds.First, Plaintiffs cannot allege that Google actually “accesses” their Android devices. Plaintiffs’claims under the unauthorized access provision are based on the collection of information bythird-party Apps that Plaintiffs chose to download. SAC 144. Plaintiffs allege that the Apps incorporatedsoftware “specifically designed by Google to facilitate the retrieval of information frommobile devices.” Id. Even if that were true, it would not follow that Google (as opposed to theApps themselves) accessed Plaintiffs’ devices. Google had no direct contact with those devices.It merely created some of the software that the third-parties used to collect information on thosedevices. Google did not design any of the Apps at issue, and Google was not responsible for theircoming to reside on Plaintiffs’ devices. Id. 53-60. Google’s role in the Apps’ alleged data collectionthus does not involve the “access” that the CFAA covers.Second, Plaintiffs authorized any access that occurred. The Ninth Circuit has interpretedthe phrase “without authorization” narrowly: it applies “when the person has not received permissionto use the computer for any purpose.” LVRC Holdings LCC v. Brekka, 581 F. 3d 1127, 1135(9th Cir. 2009). That is not the case here. Google is not some “outside hacker[]” with “no authorizedaccess to the computer at all.” United States v. Nosal, 676 F.3d 854, 858 (9th Cir. 2012) (enbanc). Plaintiffs chose to buy phones with the Android OS installed and to download the Apps.Those voluntary acts belie any unauthorized access claim. iPhone II, 844 F. Supp. 2d at 1066.Plaintiffs’ claim is also directly undermined by the disclosures made to Android users about thealleged data collection. Google’s Privacy Policy makes clear that Google may receive locationinformation from users who activate location services. Rubin Decl. Ex. A, p. 2. Likewise, theDeveloper Distribution Agreement requires App developers to tell users what information theirApps may collect (Rubin Decl. Ex. B, p. 3 ( 4.3)), and the Apps’ privacy policies and permissionsDEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-15-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page23 of 2812345678910111213141516171819202122232425262728do exactly that. See Rubin Decl. Exs. C-K. These documents, which the SAC incorporates byreference and are judicially noticeable, underscore that any “access” that Google or the Apps mayhave made to Plaintiffs’ devices was authorized and thus cannot be the basis for a CFAA claim.See, e.g., Del Vecchio v. Amazon.com, Inc., No. C11-366, 2011 WL 6325910, at *4 (W.D. Wash.Dec. 1, 2011). 12B. Plaintiffs Fail to State a Claim Under the UCLThis Court dismissed Plaintiffs’ original UCL claim on both standing and substantivegrounds. MTD Order at 12-15. The same problems remain in the SAC.1. Plaintiffs do not allege a loss of money or propertyThe UCL has its own standing requirement, which is “‘substantially narrower than federalstanding under article III.’” Zeisel v. Diamond Foods, Inc., No. C 10-01192, 2011 WL 2221113,at *3 n.2 (N.D. Cal. June 7, 2011) (White, J.) (quoting Kwikset Corp. v. Superior Court, 51Cal.4th 310, 323-24 (Cal. 2011)). Only a plaintiff who has both suffered an injury in fact and actually“lost money or property as a result of the unfair competition” is authorized to sue under theUCL. Cal. Bus. & Professions Code § 17204; Peterson v. Cellco P’ship, 164 Cal. App. 4th 1583,1590 (Cal. Ct. App. 2008). Even if Plaintiffs could establish Article III standing, they cannot satisfythe UCL’s additional requirement of tangible economic loss caused by Google’s alleged misconduct.Plaintiffs allege that they “paid more than they otherwise would have for their phones, lostavailable data on their data plans, and suffered diminished battery life.” SAC 156. But thisCourt has already rejected Plaintiffs’ overpayment theory (MTD Order at 9-10, 13) and the SACdoes not even try to rehabilitate it. Plaintiffs’ new data-plan allegations are likewise insufficient tocreate a money or property loss. Supra p. 10. That leaves the allegations about diminished batterylife. Those allegations fail to create standing under the UCL, first, because they are disconnectedfrom the experience of any named plaintiff. The SAC does not assert that any individual suffered12 While the SAC does not appear even to try to state a claim under the CFAA’s “exceedsauthorized-access”provision (§1030(a)(2)(C)), any such claim would fail for the reasons stated inGoogle’s first motion to dismiss. Google MTD at 22-23; Defendants’ Reply in Support of GoogleMTD at 11-12 (June 22, 2012), Dkt. No. 39.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-16-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page24 of 2812345678910111213141516171819202122232425262728an actual loss resulting from battery depletion. There is no claim that any plaintiff’s battery wasactually degraded or ever had to be replaced. SAC 101. Second, as discussed (supra pp. 9-10),given that that the alleged battery drainage results from Android users’ voluntary activation ofGPS (id. 30), not from Google’s subsequent receipt of location data, there can be no plausibleclaim that any loss was “as a result of” Google’s alleged unfair competition. Accepting Plaintiffs’theory would mean that an actionable loss of property occurs whenever a person’s use of an electronicdevice causes that device to consume battery power. That approach makes no sense, and itwould eviscerate the California electorate’s purpose in adopting the “money or property” requirement:to “materially curtail[] the universe of those who may enforce” the UCL. Kwikset, 51Cal.4th at 320.2. Plaintiffs fail to satisfy any of the UCL’s substantive prongsPlaintiffs’ UCL claims also fail because they allege no facts to show that Google violatedany of the statute’s substantive provisions.Google’s Conduct Was Not Unlawful. Plaintiffs cannot invoke the UCL’s unlawful prongbecause the SAC does not state a viable cause of action against Google under the CFAA or theother (unspecified) “laws and statutes” Plaintiffs invoke (SAC 157-158). MTD Order at 13.Google Conduct Was Not Fraudulent. Plaintiffs’ claim under the UCL’s fraudulent prongfares no batter. In dismissing the FAC, the Court directed Plaintiffs to “specifically identify theexact statements in the Privacy Policy that are at issue and what specific information was omitted.”MTD Order at 15. While Plaintiffs offer more detail about the alleged misrepresentations(SAC 110), the new allegations only confirm that Google’s statements were not fraudulent.First, the Google Privacy Policy specifically discloses the very data-collection practices atissue. That policy tells users that if they activate location-based services. “Google may receiveinformation about your actual location.” Rubin Decl. Ex. A, p. 2. Thus, the very document onwhich Plaintiffs claim to have relied (SAC 112) directly undermines their (unsupported) allegationthat they “did not expect” that their location data would be collected (id. 113).Second, while Plaintiffs quote several statements in Google’s Privacy Policy, they do notand cannot contend that any of those statements are actually false or misleading. In particular:DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-17-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page25 of 2812“If [Google] use[s] this information in a manner different than the purpose for which itwas collected then [Google] will ask for your consent prior to such use.” SAC 110(a).345678910111213141516171819202122232425262728“Google only shares personal information with other companies or individuals outsideof Google in the following limited circumstances . . .” SAC 110(b).Plaintiffs allege no facts contrary to these statements. While Plaintiffs claim that Google collectedlocation data (id. 31), the SAC makes no allegations about how Google actually uses such information.Plaintiffs certainly do not plead that Google shares location information, much lessthat it does so in circumstances not listed in the Privacy Policy. 13“We take appropriate security measures to protect against unauthorized access to orunauthorized alteration, disclosure or destruction of data.” SAC 110(c).“We restrict access to personal information to Google employees, contractors andagents who need to know that information in order to process it on our behalf.” SAC 110(d).These statements likewise are not contradicted by any facts that Plaintiffs allege. The SAC doesnot assert that there was any unauthorized access to the data that Google collected or that Googlefailed to use “appropriate security measures” to prevent such access. Plaintiffs cannot state a fraudclaim simply by listing various statements that Google made, where there are no factual allegationsplausibly suggesting that those statements were false. Cf. Moore v. Brewster, 96 F.3d 1240,1245 (9th Cir. 1996).Third, Plaintiffs fail to allege that Google’s alleged “misrepresentations were an immediatecause of the injury-causing conduct.” In re Tobacco II Cases, 46 Cal.4th 298, 328 (Cal. 2009).The injuries supposedly supporting Plaintiffs’ claim of fraudulent conduct are the alleged overpayment,data-usage, and battery drainage. SAC 156. But other than a threadbare assertion of“proximate and/or direct” causation (id. 166), Plaintiffs allege nothing to support a conclusionthat those injuries were actually caused by the statements in Google’s Privacy Policy. Nor couldthey. Given that the Privacy Policy expressly tells users that activating location-based servicesmay result in Google receiving location information, it is not plausible to conclude that Google’s13 Insofar as Plaintiffs seek to invoke their claims about the third-party Apps (id. 162), it isthose Apps that collect the information at issue, and such third-party collections are expressly disclosedby Google’s Privacy Policy (and, of course, by the Apps’ own privacy policies and permissions).Rubin Decl. Ex. A, p. 2; id. Exs. C-K. At any rate, Plaintiffs do not allege that Googleshares such information outside of Google or uses it for a forbidden purpose.DEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-18-

Case3:11-md-02264-JSW Document62 Filed05/30/13 Page28 of 2812345678910111213141516171819202122232425262728Dated: May 30, 2013Respectfully submitted,By:/s/ Michael H. RubinDavid H. KramerMichael H. RubinEvan M. W. SternWILSON SONSINI GOODRICH & ROSATIProfessional Corporation650 Page Mill RoadPalo Alto, CA 94304-1050Telephone: (650) 493-9300Facsimile: (650) 493-6811Email: dkramer@wsgr.comEmail: mrubin@wsgr.comEmail: estern@wsgr.comBrian M. WillenWILSON SONSINI GOODRICH & ROSATIProfessional Corporation1301 Avenue of the Americas, 40th FloorNew York, NY 10019Telephone: (212) 497-7700Facsimile: (212) 999-5899Email: bwillen@wsgr.comAttorneys for DefendantDEFENDANT’S MOTION TO DISMISS THE SACCASE NO. 3:11-MD-02264-JSW-21-

Case3:11-md-02264-JSW Document62-1 Filed05/30/13 Page1 of 412345678910111213141516171819202122232425262728DAVID H. KRAMER, State Bar No. 168452MICHAEL H. RUBIN, State Bar No. 214636EVAN M. W. STERN, State Bar No. 264851WILSON SONSINI GOODRICH & ROSATIProfessional Corporation650 Page Mill RoadPalo Alto, CA 94304-1050Telephone: (650) 493-9300Facsimile: (650) 493-6811Email: mrubin@wsgr.comBRIAN M. WILLENWILSON SONSINI GOODRICH & ROSATIProfessional Corporation1301 Avenue of the Americas, 40th FloorNew York, NY 10019Telephone: (212) 497-7700Facsimile: (212) 999-5899Attorneys for DefendantIN RE: GOOGLE ANDROIDCONSUMER PRIVACY LITIGATIONThis Document Relates to:ALL CASESUNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION))))))))))))))))))))))))))))NO. 11-MD-02264 JSWMDL No. 2264Member Cases:No. C 11-02157-JSWNo. C 11-02230-JSWNo. C 11-02427-JSWNo. C 11-03688-JSWNo. C 11-04241-JSWNo. C 11-04429-JSWNo. C 11-04506-JSWNo. C 11-04573-JSW[PROPOSED] ORDER IN SUPPORTOF DEFENDANT’S MOTION TODISMISS SECOND AMENDED CON-SOLIDATED CLASS ACTIONCOMPLAINTHearing Date: October 4, 2013Time: 9:00 a.m.Before: Honorable Jeffrey S. White[PROPOSED] ORDER ISO DEFS. MOTION TO DISMISSSECOND AMENDED CLASS ACTION COMPLAINTCASE NO. 3:11-MD-02264-JSW

Case3:11-md-02264-JSW Document62-1 Filed05/30/13 Page2 of 412345678910111213141516171819202122232425262728Defendant Google Inc.’s Motion to Dismiss Plaintiffs’ Second Amended ConsolidatedClass Action Complaint came on for hearing before this Court. After consideration of the briefsand arguments of counsel, and all other matters properly presented to the Court, Defendant’s motionto dismiss is hereby GRANTED for the following reasons:1. The Court lacks subject matter jurisdiction over this action because Plaintiffs donot possess Article III standing. This Court has already rejected Plaintiffs’ claim that they suffereda cognizable injury from either the diminished value of their personal information or theiroverpayment for Android devices. Order on Motion To Dismiss and Motion To Strike at 7-10(Mar. 26, 2013), Dkt. No. 49 (“MTD Order”). The Second Amended Consolidated Class ActionComplaint (“SAC”) does not address the shortcomings already identified by this Court and thereforedoes not rehabilitate those theories. Nor do Plaintiffs’ generalized references to battery drainageresulting from users’ activation of the “GPS” function satisfy Article III because (1) Plaintiffsdo not allege that any of the named plaintiffs themselves personally suffered any such injury; (2)the alleged battery drainage is not “fairly traceable” to Google’s alleged wrongdoing, but insteadresults from Android users’ own voluntary use of location-based services; and (3) the alleged harmwould not be redressed by a favorable decision, because none of the remedies that Plaintiffs seekwould prevent the drainage of their batteries should they choose to activate GPS. Birdsong v. AppleInc., 590 F.3d 955, 960-61 (9th Cir. 2009); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560(1992); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998). Plaintiffs’ cursorynew allegations about “data plan utilization” are likewise deficient because Plaintiffs plead nofacts whatsoever about the nature of the alleged data-plan usage or its effect on them personally.Plaintiffs merely assert that they were “potentially expos[ed]” to data charges, but such “conjecturalor hypothetical” claims of injury do not satisfy Article III. Clapper v. Amnesty Int’l, USA,133 S. Ct. 1138, 1147 (2013).2. The Plaintiffs have failed to state a claim under the Computer Fraud and Abuse Act(“CFAA”). This Court has already rejected Plaintiffs’ claims under the CFAA (MTD Order at 11-12), and the SAC does not support a different result. Plaintiffs fail to state a claim for violation ofthe CFAA for several reasons. First, Plaintiffs fail to plead that they incurred “damage” or “loss”[PROPOSED] ORDER ISO DEFS. MOTION TO DISMISSFIRST AMENDED CLASS ACTION COMPLAINTCASE NO. 3:11-MD-02264-JSW-1-

Case3:11-md-02264-JSW Document62-1 Filed05/30/13 Page3 of 412345678910111213141516171819202122232425262728within the meaning of the statute. The allegations about damage and loss in the SAC are virtuallyidentical to those in the Plaintiffs’ first complaint, and they still do nothing more than set forthbare legal conclusions couched as allegations of fact. See, e.g., Bose v. Interclick, Inc., No. 10Civ. 9183, 2011 WL 4343517, at *3-4 (S.D.N.Y. Aug. 17, 2011). Moreover, Plaintiffs allegationsabout battery drainage and data plan utilization do not establish cognizable “damage” or “loss”because the SAC does not plausibly plead that the use of battery power or data actually resulted inany “impairment” to the “integrity or availability” of the information on their devices. Mintel Int’lGrp., Ltd. v. Neergheen, No. 08-cv-3939, 2010 WL 145786, at *9 (N.D. Ill. Jan. 12, 2010); DelVecchio v. Amazon.com Inc., No. C11-399, 2012 WL 1997697, at *4 (W.D. Wash. June 1, 2012).Second, Plaintiffs fail to plead that they suffered a “loss” of at least $5,000 in a single year. Plaintiffsdo not even try to quantify the actual battery or data-related loss, and they plead no facts fromwhich the Court could infer that any such losses would exceed $5,000 in a year. In re iPhone ApplicationLitig., 844 F. Supp. 2d 1040, 1064-69 (N.D. Cal. 2012). Third, Plaintiffs have not pleadedlegally viable claims under the substantive provisions of the CFAA that they seek to invoke: (1)Plaintiffs fail to assert a CFAA claim under Section 1030(a)(5)(A) because the SAC makes noplausible allegation that Google actually “cause[d] the transmission” of any code or command toPlaintiffs’ devices or that Google intentionally caused “damage” (Czech v. Wall St. on Demand,Inc., 674 F. Supp. 2d 1102, 1119-20 (D. Minn. 2009)); (2) Plaintiffs do not state a CFAA claimunder Section 1030(a)(5)(B)-(C) because Google’s role in the Apps’ alleged data collection doesnot involve “access” within the meaning of the CFAA and any “access” that Google or the Appsmay have made to Plaintiffs’ devices was authorized (Del Vecchio v. Amazon.com, Inc., No. C11-366, 2011 WL 6325910, at *4 (W.D. Wash. Dec. 1, 2011)); and (3) Plaintiffs do not even to try tostate a claim under the CFAA’s “exceeds-authorized-access” provision (§1030(a)(2)(C)).3. The Plaintiffs have failed to state a claim under Section 17200 of the CaliforniaBusiness and Professions Code (“UCL”). This Court dismissed Plaintiffs’ original claim underthe UCL (MTD Order at 12-15), and the UCL claim in the SAC fails for the same reasons. Plaintiffshave suffered no loss of money or property caused by the challenged conduct. This Court hasalready rejected Plaintiffs’ overpayment theory (MTD Order at 9-10, 13), and Plaintiffs’ new data-[PROPOSED] ORDER ISO DEFS. MOTION TO DISMISSSECOND AMENDED CLASS ACTION COMPLAINTCASE NO. 3:11-MD-02264-JSW-2-