In re Google Referrer Header Privacy Litigation

Filing 46

REPLY Reply in Support of Google Inc.'s #44 Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Rules 12(b)(1) and 12(b)(6) filed by Google Inc.. (Attachments: #1 Revised [Proposed] Order (Edwards, Randall) (Filed on 8/2/2012) Modified on 8/21/2012 (cv, COURT STAFF).

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RANDALL W. EDWARDS (S.B. #179053)
[e-mail]
JEAN B. NIEHAUS (S.B. #254891)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111-3823
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
Google Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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PALOMA GAOS and ANTHONY
ITALIANO, individually and on behalf of all
others similarly situated,
Plaintiffs,

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v.
GOOGLE INC., a Delaware Corporation,
Defendant.

Case No. 5:10-CV-04809-EJD
REPLY IN SUPPORT OF GOOGLE
INC.’S MOTION TO DISMISS
PLAINTIFFS’ SECOND AMENDED
COMPLAINT PURSUANT TO RULES
12(b)(1) AND 12(b)(6)
Hearing Date:
Time:
Place:
Judge:

September 21, 2012
9:00 a.m.
Courtroom 1, 5th Floor
Hon. Edward J. Davila

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REPLY ISO GOOGLE’S MOT. TO DISMISS
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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION ............................................................................................................... 1

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II.

ARGUMENT ....................................................................................................................... 2

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A.

Plaintiff Italiano Does Not Have Standing To Bring The State-Law
Claims. ..................................................................................................................... 2

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1.

Mr. Italiano Has Not Alleged Facts Sufficient To Establish
An Injury Of Increased Risk Of Identity Theft. ........................................... 2

2.

Mr. Italiano’s Theory That “Other Privacy Harms” Will
Occur In The Future Does Not Constitute An Injury In Fact
Under Article III........................................................................................... 4

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B.

Plaintiff Cannot Avoid The Clear Preemptive Language Of The
Stored Communications Act By Arguing About Legislative
History. ..................................................................................................................... 5

C.

Plaintiff Italiano Cannot State A Claim For Breach Of Contract. ........................... 6

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1.

Mr. Italiano Has Failed To Plead Facts Showing Any
Appreciable And Actual Damage From The Alleged
Breach. ......................................................................................................... 6

2.

Mr. Italiano’s Has Failed To Allege Facts Showing The
Breach Of Any Contractual Obligation. ...................................................... 8

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D.

Plaintiffs Cannot State A Claim For Unjust Enrichment. ........................................ 9

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III.

CONCLUSION .................................................................................................................. 11

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TABLE OF AUTHORITIES

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Page
CASES

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Aguilera v. Pirelli Armstrong Tire Corp.,
223 F.3d 1010 (9th Cir. 2000).................................................................................................... 7
Albizo v. Wachovia Mortg.,
No. 2:11-cv-02991-KJN, 2012 WL 1413996 (E.D. Cal. Apr. 20, 2012)................................. 10

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Baur v. Veneman,
352 F.3d 625 (2d Cir. 2003) ....................................................................................................... 4
Beverage Distribs., Inc. v. Olympia Brewing Co.,
440 F.2d 21 (9th Cir. 1971)........................................................................................................ 9

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Blennis v. Hewlett-Packard Co.,
No. C-07-00333-JF, 2008 WL 818526 (N.D. Cal. Mar. 25, 2008) ......................................... 11
Bunnell v. Motion Picture Ass’n of Am.,
567 F. Supp. 2d 1148 (C.D. Cal. 2007) ..................................................................................... 6

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Castillo v. Toll Bros.,
197 Cal. App. 4th 1172 (2011) ................................................................................................ 10
Chavez v. Bank of Am. Corp.,
No. C-10-0653-JCS, 2012 WL 1594272 (N.D. Cal. May 4, 2012) ......................................... 11

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Chodos v. W. Publ’g Co.,
292 F.3d 992 (9th Cir. 2002)...................................................................................................... 7
Cross v. Wells Fargo Bank, N.A.,
No. CV11-00447-AHM, 2011 WL 6136734 (C.D. Cal. Dec. 9, 2011) ................................... 11

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Dahon N. Am., Inc. v. Hon,
No. 2:11-cv-05835-ODW, 2012 WL 1413681 (C.D. Cal. Apr. 24, 2012) .............................. 10
Davenport v. Litton Loan Servicing, LP,
725 F. Supp. 2d 862 (N.D. Cal. 2010) ..................................................................................... 11

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Doe I v. AOL LLC,
719 F. Supp. 2d 1102 (N.D. Cal. 2010) ..................................................................................... 3
Doe v. Dep’t of Veterans Affairs of United States,
474 F. Supp. 2d 1100 (D. Minn. 2007) ...................................................................................... 4

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Feimster v. Wright,
No. 5:10-cv-03330-EJD, 2012 WL 993619 (N.D. Cal. Mar. 23, 2012) .................................. 10
First Am. Fin. Corp. v. Edwards,
Case No. 10-708, 567 U.S. --- (2012) ........................................................................................ 2

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Friends of Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149 (4th Cir. 2000)...................................................................................................... 4
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TABLE OF AUTHORITIES
(continued)

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Gerlinger v. Amazon.com, Inc.,
311 F. Supp. 2d 838 (N.D. Cal. 2004) ..................................................................................... 11

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Hartman v. Summers,
120 F.3d 157 (9th Cir. 1997)...................................................................................................... 4
In re Apple In-App. Purchase Litig.,
--- F. Supp. 2d ---, 2012 WL 1123548 (N.D. Cal. Mar. 31, 2012) .......................................... 10

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In re Bank of N.Y. Mellon Corp. False Claims Act Foreign Exch. Litig.,
--- F. Supp. 2d ---, 2012 WL 1071132 (N.D. Cal. Mar. 30, 2012) .......................................... 11
In re Google Inc. St. View Elec. Commc’ns Litig.,
794 F. Supp. 2d 1067 (N.D. Cal. 2011) ..................................................................................... 5

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In re Nat’l Sec. Agency Telecomms. Records Litig.,
483 F. Supp. 2d 934 (N.D. Cal. 2007) ....................................................................................... 5
In re Nat’l Sec. Agency Telecomms. Records Litig.,
633 F. Supp. 2d 892 (N.D. Cal. 2007) ....................................................................................... 5

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Jogani v. Superior Court,
165 Cal. App. 4th 901 (2008) .................................................................................................. 10
Jurin v. Google Inc.,
768 F. Supp. 2d 1064 (E.D. Cal. 2011) ...................................................................................... 9

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Krottner v. Starbucks Corp.,
628 F.3d 1139 (9th Cir. 2010).................................................................................................... 3
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................................... 3

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McNeary-Calloway v. J.P. Morgan Chase Bank, N.A.,
--- F. Supp. 2d ---, 2012 WL 1029502 (N.D. Cal. Mar. 26, 2012) .......................................... 11
Noll v. eBay, Inc.,
--- F.R.D. ---, 2012 WL 1413442 (N.D. Cal. Apr. 23, 2012) .................................................. 10

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Nuvo Research Inc. v. McGrath,
No. C 11-2006-SBA, 2012 WL 1965870 (N.D. Cal. May 31, 2012) ........................................ 9
Pisciotta v. Old Nat’l Bancorp,
499 F.3d 629 (7th Cir. 2007)...................................................................................................... 4

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Quon v. Arch Wireless Operating Co.,
445 F. Supp. 2d 1116 (C.D. Cal. 2006), rev’d on other grounds, 529 F.3d 892
(9th Cir. 2008) ............................................................................................................................ 6

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TABLE OF AUTHORITIES
(continued)

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Page
Quon v. Arch Wireless Operating Co.,
529 F.3d 892 (9th Cir. 2008), rev’d & remanded, City of Ontario, Cal. v.
Quon, 130 S. Ct. 2619 (2010) .................................................................................................... 6
Schmier v. U.S. Court of Appeals for Ninth Circuit,
279 F.3d 817 (9th Cir. 2002)...................................................................................................... 4

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Smith v. Ford Motor Co.,
462 F. App’x 660 (9th Cir. 2011) .............................................................................................. 9
Stanley v. Bayer Healthcare LLC,
No. 11-cv-862-IEG, 2012 WL 1132920 (S.D. Cal. Apr. 3, 2012)........................................... 10

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Suzlon Energy Ltd. v. Microsoft Corp.,
671 F.3d 726 (9th Cir. 2011)...................................................................................................... 5

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Vicuna v. Alexia Foods, Inc.,
No. C-11-6119-PJH, --- F. Supp. 2d ---, 2012 WL 1497507 (N.D. Cal. Apr. 27,
2012) ........................................................................................................................................ 11

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STATUTES

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18 U.S.C. § 2518(1) ......................................................................................................................... 6

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18 U.S.C. § 2708 .......................................................................................................................... 5, 6

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I.

INTRODUCTION

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Plaintiffs concede in their Opposition that the Court should dismiss their Unfair

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Competition Law claim with prejudice. Plaintiffs do not fare much better with their other state-

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law claims, as their Opposition ignores both the controlling law and factual deficiencies that

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Google identified in its Motion. Accordingly, this Court should dismiss Plaintiff Italiano’s state-

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law claims for each of the three independent reasons Google sets forth in its Motion.
First, Mr. Italiano has not alleged facts establishing any cognizable injury, as Article III of

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the United States Constitution requires. The Second Amended Complaint’s (“SAC”) addition of

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Mr. Italiano and his allegations has not remedied the fundamental defect this Court identified in

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its March 29, 2012 Order: “[T]he [First Amended Complaint] does not plead facts sufficient to

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show that the disseminated information is of a nature that places [Plaintiff] in imminent danger of

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harm.” 3/29/2012 Order, ECF No. 38, at 4:3-4. Instead, the SAC rehashes the same flawed

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theory of speculative and hypothetical harm. Plaintiffs’ Opposition does not and cannot

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distinguish the controlling law that Google has cited, nor does it adequately address the defects

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this Court recognized in its prior Order.

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Second, the Stored Communications Act (“SCA”) preempts Mr. Italiano’s state-law

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claims. Despite recent Ninth Circuit precedent reaffirming the paramount importance of statutory

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language in the interpretation of the SCA, Plaintiffs do not address the preemptive language of

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the statute, nor do they meaningfully distinguish case law that analyzes that language. Rather, the

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Opposition misplaces its reliance on legislative history and a few district court cases that do not

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address the statutory language of the SCA, which explicitly precludes state-law claims premised

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on the same conduct as the alleged SCA violation.
Third, Mr. Italiano does not allege facts sufficient to establish either of the remaining

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state-law claims.1 The Opposition attempts to salvage Mr. Italiano’s breach of contract claim by

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creatively recasting his allegations, but the SAC does not allege facts showing the required breach

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Because Plaintiffs withdrew with prejudice their cause of action under Cal. Bus. & Prof. Code §
17200, see Opp. at 1 n.1, the only state-law claims that remain are Mr. Italiano’s claims for
breach of contract and unjust enrichment. Google accordingly submits a revised Proposed Order
reflecting Plaintiffs’ withdrawal with prejudice.
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or damage. Likewise, the Court should dismiss Mr. Italiano’s unjust enrichment claim, as it is

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inconsistent with the prevailing trend in California law of not recognizing unjust enrichment as a

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separate cause of action.

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II.

ARGUMENT
Plaintiff Italiano Does Not Have Standing To Bring The State-Law Claims.2

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A.

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Mr. Italiano, like Ms. Gaos before him, has failed to “plead facts sufficient to show that

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the disseminated information is of a nature that places [him] in imminent danger of harm.”

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3/29/12 Order at 4:3-4. After three opportunities, the only theories of harm that the Opposition

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can muster are (1) that Mr. Italiano purportedly suffers from an increased risk of identity theft,

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and (2) that “his online behavior will be traced, tracked, analyzed and sold, and he will suffer

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harm as a result.” See Plaintiffs’ Opposition, ECF No. 45 (“Opp.”), at 4:18-20, 5:7-8. But the

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SAC itself does not actually allege that Mr. Italiano suffers from an increased risk of identity

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theft, let alone any risk that is imminent, concrete and particularized. And this Court already has

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rejected the second theory, finding it insufficient to confer Article III standing. This Court

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therefore should dismiss Mr. Italiano’s state-law claims for the same reason that this Court

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dismissed the state-law claims brought in the First Amended Complaint (“FAC”): the alleged

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referrer header disclosures did not cause Mr. Italiano injury in fact under Article III. See 3/29/12

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Order at 4:1-4.

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1.

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Mr. Italiano Has Not Alleged Facts Sufficient To Establish An Injury
Of Increased Risk Of Identity Theft.

The SAC’s allegations specific to Mr. Italiano belie the Opposition’s assertion that he

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suffers from an increased risk of identity theft. The Opposition points to the third paragraph of

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the SAC, which alleges that search queries may contain “real names, street addresses, phone

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numbers, credit card numbers, social security numbers, financial account numbers and more, all

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of which increases the risk of identity theft.” See Opp. at 4:18-20; SAC ¶ 3. But, putting aside

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Google withdraws its standing arguments against the SCA claim as moot, given this Court’s
prior ruling in its 3/29/12 Order and the U.S. Supreme Court’s decision in First American
Financial Corp. v. Edwards, Case No. 10-708, 567 U.S. --- (2012). Google’s revised Proposed
Order reflects this withdrawal.
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whether referrer headers containing such search queries could establish a concrete, particularized

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risk of imminent injury—a proposition that Plaintiffs’ authorities do not establish—Mr. Italiano

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has not alleged that he submitted any such searches to Google. Compare SAC ¶ 92 with id.¶ 3.

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To the contrary, Mr. Italiano alleges only that he searched his name in conjunction with otherwise

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public facts or non-unique phrases—a glaring deficiency which the Opposition failed to refute.

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See Google’s Motion to Dismiss, ECF No. 44 (“Mot.”), at 9:15-20 & n.6. Indeed, the Opposition

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wholly ignores this argument. The SAC’s generalized assertions about what content searches can

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contain, in theory, do not remedy Mr. Italiano’s failure to allege a concrete and particularized risk

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of injury to himself. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 n.1 (1992).

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Mr. Italiano cannot establish Article III standing by arguing that he suffers from an increased risk

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of identity theft where he does not, and cannot, cite any allegation in the SAC that relates the risk

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of identity theft to his information that was purportedly disclosed.

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The factual allegations specific to Mr. Italiano’s search queries fall far short of those cases

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where courts have found an increased risk of identity theft sufficient to establish Article III

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standing. Despite the Opposition’s attempt to align Mr. Italiano’s factual allegations with those

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made in AOL and Krottner, these cases are easily distinguished because AOL and Krottner both

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involved sensitive personal data, such as social security numbers, passwords and bank account

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information, which were either published on public websites or stolen by criminals. See Mot. at

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9:21-10:8. In particular, the Opposition fails to respond to Google’s argument that the disclosures

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in AOL involved aggregated data that explicitly correlated search queries with account holders,

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which is not the case here. See Doe I v. AOL LLC, 719 F. Supp. 2d 1102, 1105, 1109 (N.D. Cal.

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2010). Indeed, the Opposition concedes that Mr. Italiano is not even linked with the searches that

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Google purportedly disclosed, stating: “Google’s disclosures increase the likelihood that third

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parties will connect those queries to Plaintiff.” Opp. at 5:6-7 (emphasis added); see Mot. at 7:23-

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25. Similarly, the Opposition misstates the facts in Krottner and omits the facts that the data

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included names, addresses and social security numbers and that the data was stolen by criminals,

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not merely disclosed to a website that the user selected to visit. Krottner v. Starbucks Corp., 628

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F.3d 1139, 1140 (9th Cir. 2010). Furthermore, the Opposition makes no attempt to respond to the
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numerous cases that have held that the mere disclosure of purported personal information does

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not constitute an injury sufficient to confer Article III standing. See Mot. at 8:9-18 (listing cases).

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2.

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Mr. Italiano’s Theory That “Other Privacy Harms” Will Occur In The
Future Does Not Constitute An Injury In Fact Under Article III.

Likewise, neither the law nor Mr. Italiano’s factual allegations support his argument that

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he has Article III standing because he is in “immediate[] danger of . . . other privacy harms.” See

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Opp. at 5:17-18. Mr. Italiano’s allegations present, at best, an attenuated theory of hypothetical

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harm that is neither imminent nor credible, as the Ninth Circuit requires. See Schmier v. U.S.

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Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002); Hartman v. Summers, 120

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F.3d 157, 160 (9th Cir. 1997) (threatened harm must be credible, not remote or hypothetical).

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The “Science of Reidentification,” which the SAC repeated verbatim from the already rejected

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FAC, involves five intermediate steps that must occur between today and Mr. Italiano’s potential

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future injury, and also relies on the independent actions of third parties not before the Court. See

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SAC ¶¶ 68-74; Mot. at 9:7-14. Moreover, the cases that Mr. Italiano cites for the proposition that

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threatened injury can satisfy Article III requirements merely highlight that his alleged future

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injury is neither credible, nor imminent. Opp. at 5:15 n.8; see Friends of Earth, Inc. v. Gaston

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Copper Recycling Corp., 204 F.3d 149, 158 (4th Cir. 2000) (holding that owner of waterway four

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miles downstream from toxic chemical discharge showed sufficient injury in fact where those

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chemicals had already been found in his lake); Baur v. Veneman, 352 F.3d 625, 638-40 (2d Cir.

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2003) (holding that plaintiff’s claim that USDA’s regulatory practice permitted exposure to

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potentially dangerous food product posed credible threat of injury because government studies

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and statements supported plaintiff’s allegations); Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629,

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632-33 (7th Cir. 2007) (holding that plaintiffs have standing where hackers stole sensitive

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personal data and plaintiffs incurred costs for credit monitoring services).3 Nothing about

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Mr. Italiano’s searches is materially different from Ms. Gaos’ searches, which this Court already

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Plaintiffs also cite Doe v. Department of Veterans Affairs of United States for this proposition,
but that case addresses neither Article III standing nor its injury-in-fact requirement. See 474 F.
Supp. 2d 1100, 1105 (D. Minn. 2007) (granting defendant’s motion for summary judgment
against plaintiff’s Privacy Act claim).
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found inadequate to state a claim. This Court has already considered and rejected Plaintiffs’ so-

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called “Science of Reidentification” and should do so again. See 3/29/12 Order at 4:3-4.

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Because Mr. Italiano identifies no allegations showing injury in fact to him, this Court
should dismiss the state-law claims.
B.

Plaintiff Cannot Avoid The Clear Preemptive Language Of The Stored
Communications Act By Arguing About Legislative History.

Plaintiffs’ Opposition does not deny that the state-law claims are premised on the exact

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conduct alleged to violate the SCA, and it ignores the SCA’s express language preempting state-

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law claims: “[t]he remedies and sanctions described in this chapter are the only judicial remedies

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and sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. § 2708 (emphasis

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added). Instead, Plaintiffs attempt to read narrowly the legislative history of the federal Wiretap

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Act to advance a theory that would directly conflict with the SCA’s own express preemptive

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language. See Opp. at 6:9-19 & n.10. As the Ninth Circuit has made clear, however, arguments

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gleaned from legislative history will not trump a statute’s plain language. See Suzlon Energy Ltd.

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v. Microsoft Corp., 671 F.3d 726, 729 (9th Cir. 2011) (rejecting attempt to use legislative history

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to interpret the SCA where the plain language of the provision was clear).

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The cases that Plaintiffs cite to support their contrary interpretation predate the Ninth

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Circuit’s decision in Suzlon Energy. See In re Nat’l Sec. Agency Telecomms. Records Litig., 633

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F. Supp. 2d 892, 905 (N.D. Cal. 2007) (finding lack of express preemption but only considering

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legislative history); In re Nat’l Sec. Agency Telecomms. Records Litig., 483 F. Supp. 2d 934, 940

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(N.D. Cal. 2007) (discussing complete preemption rather than express preemption). Indeed, one

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case that Plaintiffs cite held that field preemption would bar state-law claims based on conduct

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governed by the Wiretap Act—even in the absence of express preemption—because that act “was

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intended to comprehensively regulate the interception of electronic communications such that the

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scheme leaves no room in which the states may further regulate.” See In re Google Inc. St. View

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Elec. Commc’ns Litig., 794 F. Supp. 2d 1067, 1085-86 (N.D. Cal. 2011).

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The Opposition also makes no real attempt to distinguish the cases Google cited in its
Motion that found express preemption based on the language of Section 2708. See Quon v. Arch
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Wireless Operating Co., 445 F. Supp. 2d 1116, 1138 (C.D. Cal. 2006)4; Bunnell v. Motion Picture

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Ass’n of Am., 567 F. Supp. 2d 1148, 1154 (C.D. Cal. 2007) (holding that analogous provision of

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the federal Wiretap Act, 18 U.S.C. § 2518(1), expressly preempts state-law claims). Instead,

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Plaintiffs rely on their interpretation of Congress’ intent—despite the intent manifest from the

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plain language of Section 2708 itself and the Ninth Circuit’s directive in Suzlon—to assert

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summarily that those cases were wrongly decided. See Opp. at 6:23-7:2, 7:5-7. They also read a

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nonexistent distinction between state-law wiretap claims and other causes of action into Bunnell.

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See Opp. at 7:7-10. While Bunnell happened to include a claim under California’s wiretap act,

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the court’s holding was not so limited. See Bunnell, 567 F. Supp. 2d at 1154. Instead, the court

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reiterated the Quon holding that the SCA is the exclusive remedy “for conduct covered by the

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statute.” See id. (quotations omitted).

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Because Congress has unequivocally stated that the SCA provides the exclusive conduit

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for relief for such conduct, the SCA expressly preempts Plaintiffs’ state-law claims arising from

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the same alleged conduct giving rise to the SCA claim. This Court should therefore apply the

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plain language of Section 2708 to dismiss those claims.

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C.

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The Opposition attempts to recast Mr. Italiano’s allegations to construct the missing

Plaintiff Italiano Cannot State A Claim For Breach Of Contract.

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support for two of the required elements of a breach of contract claim: (1) damages to the

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plaintiff as a result of the breach, and (2) the breach of a contractual obligation. But Mr. Italiano

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fails to overcome Google’s showing regarding the deficiencies in the pleading of these two

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elements, and therefore the Court must dismiss his breach of contract claim.

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1.

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Mr. Italiano Has Failed To Plead Facts Showing Any Appreciable And
Actual Damage From The Alleged Breach.

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The Opposition attempts to sidestep the SAC’s failure to plead facts establishing the

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element of damage by arguing that a plaintiff has a right to elect restitution as an alternative

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Quon was reversed on other grounds by Quon v. Arch Wireless Operating Co., 529 F.3d 892
(9th Cir. 2008), which was itself reversed and remanded by City of Ontario, Cal. v. Quon, 130 S.
Ct. 2619 (2010).
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remedy. This invocation of the election of remedies doctrine puts the cart before the horse.

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While accurate that the prevailing party in a breach of contract action may elect one of three

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remedy theories, it is a prerequisite that such party be, in fact, damaged by the alleged breach.

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See Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015 (9th Cir. 2000) (applying

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California law) (holding that a contract claim requires a showing of “appreciable and actual

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damage” beyond the mere breach of contract). Indeed, the sole case that Mr. Italiano cites in

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support of his contention highlights this distinction between the requirement of damage resulting

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from the alleged breach and the subsequent ability to make an election of remedies if the breach

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of contract claim prevails: “[A] party who has been injured by a breach of contract may

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generally elect what remedy to seek.” Chodos v. W. Publ’g Co., 292 F.3d 992, 1001 (9th Cir.

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2002) (emphasis added). It is fatal to his contract claim that Mr. Italiano has not identified any

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damage that he purportedly suffered as a result of the breach of contract, which the Opposition

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has failed to refute. See Mot. at 14:4-12.

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Even assuming arguendo that Mr. Italiano need not allege any facts showing damage

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resulting from the breach, Mr. Italiano has not pled facts sufficient to establish that he conferred

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any benefit to Google. He does not allege that Google acquired money from him or that Google

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caused him any economic or compensatory loss. Rather, the Opposition merely argues that “as a

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result of sharing those searches with third parties without Plaintiff’s consent, Google enjoyed

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increased revenues from advertisers.” See Opp. at 9:13-15. But the paragraphs of the SAC the

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Opposition cites in support of this argument do not allege that Google’s alleged referrer header

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practices generate revenues for Google. See SAC ¶ 16 (generic allegations regarding Google’s

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annual revenues, but no link alleged to referrer header practices); id. ¶ 19 (description of SEO

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industry, but no link alleged to referrer header practices); id. ¶ 45 (same); id. ¶ 137 (conclusory

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and bare assertion that Mr. Italiano conferred benefit to Google). Moreover, the Opposition does

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not respond to the controlling case law that Google cites stating that the purported disclosure of

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personal information does not satisfy the “appreciable and actual damages” element required for

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stating a breach of contract claim. See Mot. at 13:18-14:1 (listing cases).

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2.

Mr. Italiano’s Has Failed To Allege Facts Showing The Breach Of Any
Contractual Obligation.

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The Opposition’s muddled attempt to identify specific provisions of Google’s Terms of

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Service and Privacy Policy that Google purportedly breached only makes it all the more clear that

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Mr. Italiano has not adequately pled a breach of contract. Mr. Italiano has no response to the

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explicit statement in Google’s Privacy Policy Key Terms that Google’s server logs embed search

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terms in the URL. See Mot. at 14:20-21. Instead, the Opposition points to SAC paragraphs 22

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through 28, which amount to almost five pages of quotations from the Terms of Service, Privacy

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Policy and other sources, and then accuses Google of “ignor[ing]” these paragraphs in its Motion,

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without explaining which specific provisions were violated by the referrer header practice

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challenged in the SAC. See Opp. at 8:1-2. To the contrary, this broad net cast by the Opposition

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simply reinforces Google’s argument that Mr. Italiano has failed to identify any specific

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contractual obligations that were breached. See Mot. at 14:21-15:1.
Mr. Italiano nonetheless gleans from these paragraphs that Google made two promises in

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its Terms of Service and Privacy Policy: (1) that Google would only disclose search queries on

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an aggregated basis; and (2) that Google would not disclose search queries containing personal

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information—as Mr. Italiano defines the term, even if his definition does not fall within the

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Privacy Policy’s definition of “Personal Information.” See Opp. at 8:2-3, 8:9-10. The first

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promise apparently emanates from the following statement in the Privacy Policy: “We may share

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with third parties certain pieces of aggregated, non-personal information, such as the number of

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users who searched for a particular term, for example, or how many users clicked on a particular

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advertisement. Such information does not identify you individually.” Opp. at 8:2-3; SAC ¶ 24.

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But this provision of the Privacy Policy simply does not state that Google will disclose search

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queries only on an aggregated basis; nor does it state that Google will not disclose search queries

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as part of referrer headers to a destination website.5

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The Opposition also finds support for this alleged promise by Google in certain videos posted
on Google’s Privacy Channel. See Opp. at 8:3; SAC ¶ 27. Plaintiffs’ reliance is misplaced not
only because the SAC does not allege that the Privacy Policy incorporates such videos by
reference, but also because unilateral, public statements of policy cannot form the basis of a
breach of contract claim. See, e.g., Jurin v. Google Inc., 768 F. Supp. 2d 1064, 1073 (E.D. Cal.
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As to the second alleged promise, Google’s Privacy Policy does state that Google will not

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disclose to third parties “Personal Information,” as the Privacy Policy Key Terms define that

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term. See SAC ¶ 23. But Mr. Italiano’s search queries, as alleged in the SAC, do not constitute

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“Personal Information” under the Privacy Policy, which it defines as information “which

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personally identifies you.” See Mot. at 15:2-19. The Opposition makes no effort to show how

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Mr. Italiano’s searches fit within the Privacy Policy’s definition of “Personal Information” and, to

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the contrary, implicitly concedes that Mr. Italiano’s alleged search queries are not “Personal

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Information,” when it acknowledges that those search queries, at some unknown time in the

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future, may “become ‘personally-identifiable.’” See Opp. at 8:7-8. Mr. Italiano also has no

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response to Google’s arguments that search terms are not linked to the identity of the user who

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entered them, and that the SAC makes no allegation of any instance where a search term entered

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by Mr. Italiano enabled (or even could enable) a third party to identify him. Mot. at 15:7-19.

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This is because the search terms that Mr. Italiano purportedly entered reflect facts in the public

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domain, which Mr. Italiano has not disputed. Mot. at 15:16-19.

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Mr. Italiano’s repeated failure to articulate a theory by which Google’s purported conduct

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breached any particular provision of its Privacy Policy or Terms of Service requires dismissal of

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his breach of contract claim.

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D.

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Google has acknowledged that, in the past, this Court has permitted an unjust enrichment

Plaintiffs Cannot State A Claim For Unjust Enrichment.

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claim to proceed. But Google maintains that an increasing number of both federal and state

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courts have found that, under California law, unjust enrichment is not an independent cause of

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action. See, e.g., Smith v. Ford Motor Co., No. 10-17321, 2011 WL 6322200, at *3 (9th Cir. Dec.

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19, 2011) (unjust enrichment claims cannot stand alone); Nuvo Research Inc. v. McGrath, No. C

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11-4006-SBA, 2012 WL 1965870, at *7 (N.D. Cal. May 31, 2012) (“[T]here is no independent

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claim for unjust enrichment.”); Dahon N. Am., Inc. v. Hon, No. 2:11-cv-05835-ODW, 2012 WL

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2011) (“A broadly stated promise to abide by its own policy does not hold [Google] to a
contract.”); Beverage Distribs., Inc. v. Olympia Brewing Co., 440 F.2d 21, 29 (9th Cir. 1971)
(statement of policy does not constitute a contract).
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1413681, at *12 (C.D. Cal. Apr. 24, 2012) (“[U]njust enrichment is not a separate cause of

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action.”); Albizo v. Wachovia Mortg., No. 2:11-cv-02991-KJN, 2012 WL 1413996, at *13 (E.D.

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Cal. Apr. 20, 2012) (“[W]hile California courts disagree as to whether unjust enrichment may be

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brought as a separate cause of action or instead merely provides a remedy for another claim

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courts in this district have adopted the latter view.”); Stanley v. Bayer Healthcare LLC, No. 11-

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cv-862-IEG, 2012 WL 1132920, at *11 (S.D. Cal. Apr. 3, 2012) (“Unjust enrichment, however, is

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a general principle underlying various legal doctrines and remedies; it is not an independent cause

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of action.”) (internal citations and quotations omitted); Castillo v. Toll Bros., 197 Cal. App. 4th

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1172, 1209 (2011) (upholding trial court’s decision that “California does not recognize unjust

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enrichment as a separate cause of action”); Jogani v. Superior Court, 165 Cal. App. 4th 901, 911

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(2008) (“[U]njust enrichment is not a cause of action.”). Indeed, this Court held the same earlier

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this year. See Feimster v. Wright, No. 5:10-cv-03330-EJD, 2012 WL 993619, at *3 (N.D. Cal.

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Mar. 23, 2012) (“The bank’s cross-claim . . . is dismissed because there is no independent action

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for unjust enrichment in California.”).

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In the alternative, even where this Court has permitted unjust enrichment to be pled as an

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alternative to a breach of contract claim, the circumstances were readily distinguishable from the

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claims in this case. Unlike in this action, in each of those cases the parties bringing the unjust

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enrichment claims disputed the validity or scope of the contract. For example, the Apple In-App

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Purchase Litigation plaintiffs alleged that they had the option to void the relevant contracts and

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claim entitlement to restitution under an unjust enrichment theory “if the class members elect[ed]

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to void the contracts.” In re Apple In-App. Purchase Litig., --- F. Supp. 2d ---, 2012 WL

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1123548, at *3, *9 (N.D. Cal. Mar. 31, 2012) (emphasis added). Likewise, in Noll v. eBay, the

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parties disputed the scope of the contract between the parties and the extent to which the

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complained of conduct was subject to that agreement. Noll v. eBay, Inc., --- F.R.D. ---, 2012 WL

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1413442, at *5-6 (N.D. Cal. Apr. 23, 2012). In each of these cases, the existence of a valid

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contract covering the conduct at issue was disputed.

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Here, in contrast, Plaintiffs have alleged—and no party has disputed—that an express
contract governed the parties’ relationship. See SAC ¶¶ 123-26. Plaintiffs have not pled a set of
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REPLY ISO GOOGLE’S MOT. TO DISMISS
NO. 5:10-CV-04809-EJD

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facts, in the alternative or otherwise, under which no valid contract would exist. Thus, this is not

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one of the limited circumstances where a minority of courts have recognized an unjust enrichment

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claim. See In re Bank of N.Y. Mellon Corp. False Claims Act Foreign Exch. Litig., --- F. Supp.

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2d ---, 2012 WL 1071132, at *11 (N.D. Cal. Mar. 30, 2012) (granting motion to dismiss because

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claim did “not allege[] that the parties’ rights were not squarely set out in a binding agreement, or

6

that the express contracts were ineffective”); Blennis v. Hewlett-Packard Co., No. C-07-00333-

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JF, 2008 WL 818526, at *4 (N.D. Cal. Mar. 25, 2008) (“‘A plaintiff can recover for unjust

8

enrichment only where there is no contractual relationship between the parties.’”) (quoting

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Gerlinger v. Amazon.com, Inc., 311 F. Supp. 2d 838, 856 (N.D. Cal. 2004)).

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Finally, Plaintiffs’ allegations do not state a claim for unjust enrichment, even under their

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own view of what is required. Plaintiffs do not plead facts establishing that Google received an

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improper benefit at plaintiffs’ expense such that plaintiffs are entitled to restitution. See Chavez

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v. Bank of Am. Corp., No. C-10-0653-JCS, 2012 WL 1594272, at *10 (N.D. Cal. May 4, 2012)

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(“[E]ven though California law may not recognize unjust enrichment as an independent claim,

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such a claim may be understood as one for restitution.”); Vicuna v. Alexia Foods, Inc., No. C-11-

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6119-PJH, --- F. Supp. 2d ---, 2012 WL 1497507, at *3 (N.D. Cal. Apr. 27, 2012) (“This court

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agrees with those courts that have found that unjust enrichment is ‘not a cause of action . . . or

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even a remedy . . . . [i]t is synonymous with restitution.”); see McNeary-Calloway v. J.P. Morgan

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Chase Bank, N.A., --- F. Supp. 2d ---, 2012 WL 1029502, at *31 (N.D. Cal. Mar. 26, 2012); Cross

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v. Wells Fargo Bank, N.A., No. CV11-00447-AHM, 2011 WL 6136734, at *3 (C.D. Cal. Dec. 9,

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2011); Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862, 885 (N.D. Cal. 2010). As

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Google has repeatedly pointed out, Plaintiffs cannot make this showing, because the SAC yet

23

again fails to allege any harm to the Plaintiffs, let alone any benefit at Plaintiffs’ expense. This

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Court should therefore, once again, dismiss Plaintiffs’ claim for unjust enrichment.

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III.

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CONCLUSION
Google respectfully requests that the Court dismiss the causes of action for breach of

contract and unjust enrichment.

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REPLY ISO GOOGLE’S MOT. TO DISMISS
NO. 5:10-CV-04809-EJD

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Dated: August 2, 2012
O’MELVENY & MYERS LLP

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By:

/s/ Randall W. Edwards
Randall W. Edwards
Attorneys for Defendant
Google Inc.

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