UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CARA JONES, as parent and guardian of E.J., N.J., A.J., and L.J., minors; JUSTIN EFROS, as parent and No. 21-16281 guardian of J.A.E. and J.R.E., Minors; NICHOLE HUBBARD, as parent and D.C. No. 5:19-cv- guardian of C.H., a minor; individually 07016-BLF and on behalf of all others similarly situated; RENEE GILMORE, as parent and guardian of M.W., a minor; ORDER AND JAY GOODWIN, as parent and AMENDED guardian of A.G., a minor; BOBBI OPINION DISHMAN, as parent and guardian of C.D., a minor; PAULA RIDENTI, as parent and guardian of R.A. and R.M.A., minors; C.H.; E.J.; N.J.; A.J.; L.J.; J.A.E.; J.R.E.; M.W.; A.G.; C.D.,

Plaintiffs-Appellants,

v. GOOGLE LLC; YOUTUBE, LLC; MATTEL, INC.; DREAMWORKS ANIMATION LLC; HASBRO, INC.; HASBRO STUDIOS, LLC; THE CARTOON NETWORK, INC.; CARTOON NETWORK STUDIOS, INC.; POCKETWATCH, INC.; 2 JONES V. GOOGLE, LLC

REMKA, INC.; RTR PRODUCTION, LLC; RFR ENTERTAINMENT, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Argued and Submitted August 31, 2022 Seattle, Washington

Filed December 28, 2022 Amended July 13, 2023

Before: Michael Daly Hawkins, M. Margaret McKeown, and Gabriel P. Sanchez, Circuit Judges.

Order; Opinion by Judge McKeown JONES V. GOOGLE, LLC 3

SUMMARY *

Preemption / Children’s Online Privacy Protection Act

The panel filed (1) an order denying a petition for panel rehearing, denying a petition for rehearing en banc, and amending the opinion filed on December 28, 2022; and (2) an amended opinion reversing the district court’s dismissal, on preemption grounds, of a third amended complaint in an action brought by a class of children, appearing through their guardians ad litem, against Google LLC and others, alleging that Google used persistent identifiers to collect data and track their online behavior surreptitiously and without their consent in violation of the Children’s Online Privacy Protection Act (“COPPA”). Google owns YouTube, an online video-sharing platform that is popular among children. Google’s targeted advertising is aided by technology that delivers curated, customized advertising based on information about specific users. Google’s technology depends partly on what Federal Trade Commission (“FTC”) regulations call “persistent identifiers,” information “that can be used to recognize a user over time and across different Web sites or online services.” 16 C.F.R. § 312.2. In 2013, the FTC adopted regulations under COPPA that barred the collection of children’s “persistent identifiers” without parental consent. The plaintiff class alleged that Google used persistent identifiers to collect data and track their online behavior * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 JONES V. GOOGLE, LLC

surreptitiously and without their consent. They pleaded only state law causes of action, but also alleged that Google’s activities violated COPPA. The district court held that the “core allegations” in the third amended complaint were preempted by COPPA. The panel considered the question of whether COPPA preempts state law claims based on underlying conduct that also violates COPPA’s regulations. Express preemption is a question of statutory construction. COPPA’s preemption clause provides: “[n]o State or local government may impose any liability . . . that is inconsistent with the treatment of those activities or actions under this section.” 15 U.S.C. § 6502(d). The panel hel