UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PATRICK CALHOUN; ELAINE No. 22-16993 CRESPO; MICHAEL HENRY; CORNICE WILSON; RODNEY D.C. No. 4:20-cv- JOHNSON; CLAUDIA KINDLER, 05146-YGR

Plaintiffs-Appellants, OPINION v. GOOGLE, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted July 19, 2024 San Francisco, California

Filed August 20, 2024

Before: MILAN D. SMITH, JR., MARK J. BENNETT, and ANTHONY D. JOHNSTONE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr. 2 CALHOUN V. GOOGLE, LLC

SUMMARY *

Data Collection

The panel reversed the district court’s summary judgment in favor of Google, LLC, in a class action alleging that the company surreptitiously collected users’ data in violation of various state and federal laws, and remanded for further proceedings. Plaintiffs are a group of Google Chrome users who chose not to sync their Chrome browsers with their Google accounts while browsing the web. As they allege in their complaint, Plaintiffs believed, based on the terms of Google’s Chrome Privacy Notice, that their choice not to sync Chrome with their Google accounts meant that certain personal information would not be collected and used by Google. The district court held that Google successfully proved that Plaintiffs consented to its data collection. The panel explained that the district court should have reviewed the terms of Google’s various disclosures and decided whether a reasonable user reading them would think that he or she was consenting to the data collection. By focusing on “browser agnosticism” instead of conducting the reasonable person inquiry, the district court failed to apply the correct standard. Viewed in the light most favorable to Plaintiffs, browser agnosticism is irrelevant because nothing in Google’s disclosures is tied to what other browsers do.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CALHOUN V. GOOGLE, LLC 3

Because applying the correct standard reveals disputes of material fact regarding whether “reasonable” users of Google’s product consented to Google’s data collection practices, the panel remanded the issue of consent— assuming a plaintiff class is certified—to the district court for trial.

COUNSEL Matthew W.H. Wessler (argued), Gupta Wessler LLP, Washington, D.C.; Neil K. Sawhney, Gupta Wessler LLP, San Francisco, California; Jason O. Barnes, Simmons Hanly Conroy, St. Louis, Missouri; Eric S. Johnson and Jennifer M. Paulson, Simmons Hanly Conroy, Alton, Illinois; Thien An Vinh Truong, Simmons Hanly Conroy, New York, New York; Amy E. Keller, Adam J. Levitt, and Adam Prom, DiCello Levitt LLP, Chicago, Illinois; Corban S. Rhodes and David A. Straite, DiCello Levitt LLP, New York, New York; Lesley Weaver, Bleichmar Fonti & Auld LLP, Oakland, California; for Plaintiffs-Appellants. Andrew H. Schapiro (argued) and Joseph H. Margolies, Quinn Emanuel Urquhart & Sullivan LLP, Chicago, Illinois; Stephen Broome, Quinn Emanuel Urquhart & Sullivan LLP, New York, New York; Diane Doolittle, Quinn Emanuel Urquhart & Sullivan LLP, Redwood Shores, California; Alyssa Olson and Viola Trebicka, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, California; Christopher G. Michel, Quinn Emanuel Urquhart & Sullivan LLP, Washington, D.C.; Jeffrey M. Gutkin, Cooley LLP, San Francisco, California; for Defendant-Appellee. Jeffrey R. White and Sean Domnick, American Association for Justice, Washington, D.C.; Saveena Tak