Rodriguez et al v. Google LLC et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANIBAL RODRIGUEZ, et al.,
Plaintiffs,
v.
GOOGLE LLC,
Defendant.
Case No. 20-cv-04688-RS
ORDER DENYING MOTION FOR
EQUITABLE RELIEF AND DENYING
MOTION TO DECERTIFY THE
CLASS
In this privacy action, a class of Google users (Plaintiffs) sued Google for collecting their
anonymized data in contravention of Google’s privacy disclosures. A jury found Google liable for
invasion of privacy under the California Constitution and intrusion upon seclusion, and it awarded
Plaintiffs $425,651,947 in compensatory damages.
Plaintiffs think that is not enough. They move for a permanent injunction and
disgorgement of $2.36 billion—a figure they characterize as a “conservative approximation of
Google’s net profits from its misconduct during the class period.” Dkt. 700 (ER Mot.), at 9.
Google thinks it is too much. It moves to decertify the class because, in its view, the evidence
presented at trial makes clear that liability turned on individualized proof. See Dkt. 698 (Decert.
Mot.). Once the class is decertified, Google argues that the jury verdict must be vacated.
Both motions are denied. As to the former, Plaintiffs have failed to establish prospective
irreparable harm, making a permanent injunction inappropriate. They have also failed to show
entitlement to disgorgement, both because their legal remedy is adequate and because their
estimate of Google’s profits is insufficiently supported. As to the latter, Google’s argument rests
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 1 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
on a misapprehension of Plaintiffs’ theory of offensiveness—a misapprehension spun up out of a
few stray comments made by a single witness. The core of Plaintiffs’ theory is and always has
been that Google’s decision to collect certain data after it said it would not was inherently
offensive. That theory is perfectly susceptible to collective proof.
I. BACKGROUND
This case is about whether Google adequately disclosed its data collection policies.
Plaintiffs are members of two sub-classes—one composed of Android users, and one composed of
non-Android users—who turned off the supplemental Web App and Activity (sWAA) setting in
their Google accounts. The sWAA button governs information regarding a user’s “[Google]
Chrome history and activities from sites, apps, and devices that use Google services.” Plaintiffs
averred that Google collected anonymized data when Plaintiffs accessed third-party apps and used
that data for commercial purposes, despite representing that turning the sWAA button off would
stop Google from doing so. Plaintiffs asserted three claims under California law: violation of the
Comprehensive Computer Data Access and Fraud Act (CDAFA), invasion of privacy under the
California Constitution, and common law intrusion upon seclusion. They sought money damages
(actual, punitive, and nominal), disgorgement of profits, and injunctive relief.
The jury heard evidence for three weeks and ultimately returned a mixed verdict. It found
Google not liable for violating CDAFA but liable for invasion of privacy and intrusion upon
seclusion. In so finding, it rejected Google’s affirmative defense of consent. The jury awarded the
two sub-classes $425,651,947 in actual damages, but it declined to award punitive or nominal
damages. The jury also determined that Plaintiffs were not entitled to disgorgement, though that
conclusion was only advisory as, in a pre-trial motion in limine, disgorgement was tentatively
determined to be an equitable remedy to be awarded at the discretion of the court. See Dkt. 587, at
9–11.
The parties now seek to augment and upset the verdict in various ways. First, Plaintiffs ask
for a permanent injunction (1) enjoining Google from collecting and saving sWAA-off data in the
future; (2) requiring Google to delete the sWAA-off data it has already collected; (3) requiring
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 2 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
Google to destroy the algorithms, models, and services created or modified using sWAA-off data;
and (4) appointing an independent third-party to monitor and ensure Google’s compliance with the
injunction. Second, Plaintiffs request Google be ordered to disgorge $2.36 billion in net profits
attributable to Google’s collection of sWAA-off data during the class period. See ER Mot., at 1.
Finally, Google requests that the class be decertified, which would require vacatur of the jury
verdict. See Decert. Mot., at 2.
II. LEGAL STANDARD
a. Permanent Injunction
“According to well-established principles of equity, a plaintiff seeking a permanent
injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must
demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4)
that the public interest would not be disserved by a permanent injunction.” eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “The decision to grant or deny permanent
injunctive relief is an act of equitable discretion by the district court.” Id.
b. Disgorgement
Under California law, disgorgement (also referred to as unjust enrichment) is available
where (1) the defendant received a benefit, and (2) the retention of the benefit at the expense of
another is unjust. See Peterson v. Cellco P’ship, 164 Cal.App.4th 1583, 1593 (2008). The
requirement that the retention be unjust “requires wrongful conduct on the part of the party
receiving the benefit.” Shum v. Intel Corp., 630 F. Supp. 2d 1063, 1073 (N.D. Cal. 2009), aff’d,
633 F.3d 1067 (Fed. Cir. 2010).
c. Decertification
Under Federal Rule of Civil Procedure 23(c)(1)(C), “[a]n order that grants or denies class
certification may be altered or amended before final judgment.” “Thus, a district court’s order
denying or granting class status is inherently tentative,” and decertification is appropriate if the
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 3 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
strictures of Rule 23 are no longer met. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11
(1978); see Abante Rooter and Plumbing, Inc., et al. v. Alarm.Com Incorporated, 2018 WL
558844, at *2 (N.D. Cal. Jan. 25, 2018) (“District courts have a responsibility to review
continually the appropriateness of a certified class in light of developments subsequent to class
certification.”) (internal quotation marks omitted). Even where a defendant moves to decertify a
class, it is the party that originally sought certification that bears the burden of demonstrating that
the requirements of Rule 23 continue to be satisfied. See Marlo v. United Parcel Service, Inc., 639
F.3d 942, 947 (9th Cir. 2011). 1
III. DISCUSSION
a. Permanent Injunction
The most basic requirement for a permanent injunction is the existence of prospective,
irreparable harm. Plaintiffs assert that Google continues illegally to collect sWAA-off data. They
claim they are irreparably harmed because that collection violates their legal rights and exposes
them to the risk that their data will be misappropriated or misused.
However, as Google points out, collecting sWAA-off data is not problematic in isolation—
the legal violation here stemmed from Google’s misrepresentations about its data collection
practices. That concern has been ameliorated. First, Google has submitted a declaration from a
WAA product manager explaining that, post-trial, Google amended its privacy disclosures to
reflect its data-collection practices accurately. See Dkt. 703, Monsees Decl. Specifically, the top of
the Activity Control page on a user’s Google account page now says:
These settings help tailor your experiences across Google services when you use
your Google Account.
Google always collects, uses, and processes data in accordance with the Google
Privacy Policy. For example, regardless of these settings, Google can collect and
use data that is not associated with your account.
1 To the extent that resolving Plaintiffs’ requests for injunctive relief and/or disgorgement require
findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a), this Order
constitutes those findings and conclusions.
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 4 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
Id., at 2 (emphasis added). This change now tells Google’s users what they need to know. Namely,
regardless of whether they switch sWAA off or not, Google will “collect and use data” that is not
tied to the user’s account—i.e., data that is anonymized.
Plaintiffs think this is not enough. They argue that the disclosure is still impermissibly
vague, and they accuse Google of attempting to revive the consent argument it offered at trial.
Those concerns are misplaced. At trial, Google argued that by telling its users that they “can
control what is saved in your Google Account,” those users would have known that the sWAA
button did not control Google’s use of app-tracking data outside of the Google Account. Trial Tr.
at 1918:8–17. The jury rejected that argument, perhaps because to know precisely what Google
was doing, the users would have had to draw the correct negative inference from its disclosures.
The new amendment eliminates the need to draw any inference. Instead of saying “users
can control what account-specific data is collected,” Google now says “users cannot control what
non-account-specific data is collected.” Even if, as Plaintiffs argue, Google could more precisely
define what it means for data to be “associated with your account,” it has cured the core problem
with its initial disclosure.
Next, Plaintiffs argue that the disclosure remains misleading because it uses the word
“can” instead of “will.” This choice, combined with Google’s choice to keep the sWAA-off button
without a new disclosure specific to the button, leaves the impression, Plaintiffs say, that users can
still disable Google from collecting their anonymized data by turning sWAA off. No reasonable
user would understand the disclosures that way. Google warns its users that it “can” collect data
“regardless of these settings,”—that is, regardless of whether sWAA and other related settings are
switched on or off. For a user to be confused in the manner Plaintiffs suggest, he would have to
ignore the first half of the new disclosure. Moreover, even if the word “can” implies some
uncertainty over whether the data will be collected, it does not imply that Plaintiffs control the
collection. The much more natural reading is that Google will decide whether it will collect the
data. Maybe it will; maybe it won’t, but either way, the user has no say.
Plaintiffs also contend that injunctive relief is necessary because Google is free to undo the
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 5 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
changes to its privacy policy. They claim that Google “bears the formidable burden of showing
that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to
recur,” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000),
but that is not the law. Laidlaw articulated the test for deciding if a case is moot within the
meaning of Article III, not for deciding whether injunctive relief is appropriate as a matter of
equitable discretion. In exercising that discretion, courts are doubtless permitted to consider the
likelihood that the defendant will simply revert back to its old ways once the litigation concludes.
Here, that likelihood is exceedingly small. Google’s old policy has already been adjudged illegal,
and it has been made to pay more than $400 million to compensate for the violation. Its decision to
alter its conduct also appears relatively costless, making it unlikely that Google is simply hoping
to run out the clock on this litigation before it can go back to doing business as it did before.
Even if some injunctive relief were appropriate, Plaintiffs’ proposal is far too broad. They
ask for an order enjoining Google from collecting and saving sWAA-off data in the future even
though, as explained, collecting and saving sWAA-off data is not in and of itself illegal. They also
ask Google to delete all the sWAA-off data it already collected and to destroy the algorithms,
models, and services created or modified using sWAA-off data. The parties debate how feasible
that is in practice, but feasibility is beside the point. Plaintiffs have failed to demonstrate how
precisely they are irreparably harmed by Google’s continued possession of that data. They are
correct that nothing prevents Google from continuing to make commercial use of the sWAA-off
data that it illegally collected, but Plaintiffs have already been compensated for that harm. The
jury verdict reflected the value of the illegal taking. Much of that value stems from Google’s
ability to monetize the data, and there is no reason to think that the jury considered only backward-
looking monetization when calculating damages.
True, Plaintiffs point to some cases that speak in broad language about the irreparable
harm of ongoing data collection or use, see, e.g., Meyer v. Portfolio Recovery Assocs., LLC, 707
F.3d 1036, 1045 (9th Cir. 2012) (affirming preliminary injunction where defendant would
continue to violate “right to privacy”); Facebook, Inc. v. Power Ventures, Inc., 252 F. Supp. 3d
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 6 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
765, 782 (N.D. Cal. 2017), but those cases must be understood in their context. In Facebook, the
court determined that absent a permanent injunction, “it is very likely that . . . Defendants will
again attempt to access Facebook’s servers without authorization,” a conclusion stemming from
Defendant’s “bad faith conduct that indicates that they will not easily be deterred.” 252 F. Supp.
3d at 782. Likewise, in Meyer, the Ninth Circuit affirmed the injunction because, at that early
stage of the litigation, the defendant had failed to “acknowledge the wrongful nature of its
conduct” and had continued violating the law as to other individuals even though it had stopped as
to the plaintiff. 707 F.3d at 1045. Google, by contrast, actively changed its behavior to reflect the
jury’s liability finding. Plaintiffs have not demonstrated that Google is a bad faith actor and that it
will continue misrepresenting its privacy practices in the absence of injunctive relief. Because
Plaintiffs’ have failed to demonstrate irreparable harm, there is no need to address the remaining
factors. Plaintiffs’ request for a permanent injunction is denied.
b. Disgorgement
Analytically, Plaintiffs must show three things to obtain $2.36 billion in disgorgement: (1)
that disgorgement is an equitable remedy in this case, (2) that they lack an adequate remedy at law
(and thus that there is equitable jurisdiction), and (3) that $2.36 billion is a reasonable
approximation of Google’s profits from the legal violation.
i. Disgorgement is an Equitable Remedy
On the first point, the parties find themselves in an awkward position. Before trial,
Plaintiffs—presumably because they thought a jury was likely to award disgorgement—contended
they were not seeking the return of specific property unjustly possessed by Google and thus that
disgorgement was a legal remedy. Google—presumably because it read the winds the same way—
argued that disgorgement was an equitable remedy and thus no evidence on disgorgement should
be presented to the jury.
As it turns out, the parties are poor prognosticators. The jury found liability on two of
Plaintiffs’ three claims, but it declined to award any disgorgement. So, unsurprisingly, the parties
have switched sides. Plaintiffs want the court to decide the amount of disgorgement; Google wants
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 7 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
the jury’s advisory verdict transformed into a binding one. Each side also accuses the other of flip-
flopping and waiver, but those charges ring hollow in light of the record.
In any event, the question of whether disgorgement is legal or equitable in this case must
be answered. The order resolving motion in limine no. 2 tentatively concluded that disgorgement
is equitable in this case. See Dkt. 587, at 9–11. That was because, to be considered equitable,
Plaintiffs needed to “seek not to impose personal liability on the defendant, but to restore to the
plaintiff particular funds or property in the defendant’s possession.” Great-West Life & Annuity
Ins. Co. v. Knudson, 534 U.S. 204, 214 (2002). By “argu[ing] that particular funds Google has—
i.e., those it generates through use of their data in programs like App Promo, Admob, and Ad
Manager—are traceable to the particular data that [Google] allegedly collected and used without
Plaintiff’s permission or consent,” Plaintiffs purported to do so. Dkt. 587, at 10.
Google offers two reasons to depart from that conclusion. First, it claims that the CDAFA
claim was the “only claim in this case that supported an equitable disgorgement remedy,” and by
finding no liability on that claim, the jury eliminated the only equitable disgorgement request in
the case. Yet, from the inception of this case, Plaintiffs have sought disgorgement as a remedy for
all three causes of action. See Dkt. 289 (Fourth Amended Complaint), at 76. That request was
reflected in the jury instructions, which advised the jury that it could award disgorgement “only if
[it found] Plaintiffs have proved all of the elements of their first claim (violation of CDAFA),
second claim (invasion of privacy), and/or third claim (intrusion upon seclusion).” Dkt. 666, at 25
(jury instruction no. 24); see also Dkt. 670 (verdict form).
This argument, moreover, fails to contend with the availability of disgorgement for
common law intrusion upon seclusion under California law. California courts generally follow the
Restatement Third of Restitution and Unjust Enrichment, see, e.g., American Master Lease LLC v.
Idanta Partners, Ltd., 225 Cal.App.4th 1451, 1486, fn. 23 (2014), and section 51 of the
Restatement permits recovery of “the net profit attributable” to certain “misconduct.” Among that
“misconduct” is “conscious interference with a claimant’s legally protected interests.”
Restatement Third of Restitution and Unjust Enrichment § 44(1). Plaintiffs’ intrusion upon
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 8 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
seclusion claim here averred precisely that: Google consciously interfered with their legally
protected interest in their personal data. Thus, California law permits disgorgement of the net
profits attributable to that misdeed, which is what Plaintiffs have sought from the start.
Google’s second argument is that Plaintiffs have abandoned their attempt to trace their
illegally harvested sWAA-off data to specific Google profits, making the request for disgorgement
legal. See Great-West Life, 534 U.S. at 214. However, Plaintiffs do not need to trace the collection
of their data to precise dollars sitting somewhere in a Google bank account, they must merely offer
“a reasonable approximation of profits causally connected to the violation.” SEC v. First Pacific
Bancorp, 142 F.3d 1186, 1192 n.6 (9th Cir. 1998) (quoting SEC v. First Jersey Sec., Inc., 101 F.3d
1450, 1475 (2d Cir. 1996)). Plaintiffs have attempted to do just that by isolating the profits Google
earned from the commercial uses of Plaintiffs’ sWAA-off data. Therefore, their request for
disgorgement of profits is equitable.
ii. Equitable Jurisdiction is Lacking
Because disgorgement is an equitable remedy in this case, Plaintiffs may only seek it in
federal court if they lack an adequate remedy at law. Sonner v. Premier Nutrition Corp., 971 F.3d
834, 837 (9th Cir. 2020). Plaintiffs argue that the compensatory damages award is insufficient
because Google “made substantially more than $425 million in net profits for its use of Plaintiffs’
sWAA-off app activity data.” ER Mot. at 20.2
By focusing on the difference between the jury’s damages award and the alleged quantum
of ill-gotten gains, Plaintiffs appear to concede (albeit implicitly) that the legal remedy would have
been adequate had the jury awarded them more than $2.36 billion. In that case, the equitable aims
2 Plaintiffs argue that Google waived this argument by failing to assert it until this late stage of the
litigation. However, consideration of this argument is proper for two reasons. First, Google
included the availability of an adequate legal remedy as a defense in its answer to Plaintiffs’
Fourth Amended Complaint. See Dkt. 305, at 40. Second, disgorgement was tentatively deemed
equitable through the resolution of motion in limine no. 2. If that decision went the other way,
equitable jurisdiction would not have been an issue. Once it went the way that it did, it became
clear that the bulk of the fight over disgorgement was going to happen post-trial, making it
reasonable for Google to sit on the equitable jurisdiction argument until this point.
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 9 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
of disgorgement—to ensure that a wrongdoer does not profit from his misdeed—would have been
satisfied, and disgorgement on top of the damages award would serve only to punish Google.
That concession presents a problem. If there was some legal remedy out there that would
have been adequate, the equitable jurisdiction of the federal courts cannot be invoked unless that
remedy is unavailable. See Sonner, 971 F.3d at 837. Plaintiffs’ argument reduces unavailability to
uncertainty—that is, they appear to claim that equitable relief is appropriate so long as the jury
might (or in this case, did) award less than complete and adequate relief via damages.
That is an anomalous proposition. For one, it would seem to create an equitable backstop
in cases that are just not litigated well. If plaintiffs calls a damages expert that a jury finds not
credible, they can fall back on their equitable claim after the jury declines to award damages.
Indeed, some version of that happened here. Throughout trial, Plaintiffs put on evidence
quantifying their injury and, during closing statements, asserted they were owed $31.15 billion—
more than 13 times the amount they now claim Google made off their data. The jury simply did
not buy it. At bottom, the purpose of federal equitable jurisdiction is to act as a gap filler where
legal remedies are inadequate, not to give a plaintiff a second bite at the apple.
Plaintiffs rely at length on cases, such as In re Facebook, Inc. Internet Tracking Litigation,
which say that disgorgement is proper under California law even when a plaintiff suffers no injury
at all. 956 F.3d 589, 599 (“California law recognizes a right to disgorgement of profits resulting
from unjust enrichment, even where an individual has not suffered a corresponding loss.”).
Facebook stands for the uncontroversial proposition that a plaintiff that concedes he was not
harmed has standing to seek disgorgement for a common law privacy tort in federal court, so long
as disgorgement is available under state law. See id. at 600. It does not answer the considerably
harder question of what residual entitlement to disgorgement a plaintiff has if he or she tries but
fails to establish damages.
Indeed, Plaintiffs have failed to identify any case from any court in which a claimant has
been permitted to pursue an equitable remedy after a jury partially rejected their otherwise
adequate legal remedy. They seem to claim that Clark v. Yodlee, No. 20-cv-5991-SK (N.D. Cal.
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 10 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
Sep. 15, 2023) (Dkt. 356) is such a case, but it is not. In Clark, a class of plaintiffs asserting a
data-privacy claim sought disgorgement of profits. See id., at 1. At the pleading stage, they averred
that money damages were an inadequate remedy because the defendant “monetized Plaintiffs’ data
in ways that do not involve Plaintiffs, and do not necessarily give rise to damages.” Id., at 5. That
was enough for their disgorgement request to proceed, the court explained, because it clarified
why damages were incapable of divesting the defendant from the profits of its misconduct. See id.,
at 6.
The salient difference, of course, is that the Clark plaintiffs identified something structural
about the legal remedy that made it inadequate before trial. They did not assert an entitlement to
damages in excess of the defendant’s unjust enrichment but nonetheless ask the court for
permission to keep disgorgement in their back pockets as a failsafe. Because Plaintiffs have failed
to establish that they lack an adequate remedy at law, their request for disgorgement is denied.
iii. Plaintiffs’ Profit Estimate is Unsupported
There is a further reason disgorgement is inappropriate here: Plaintiffs have failed to offer
a supportable approximation of the net profits Google earned from the misconduct. Under
California law, the burden of production on “benefit” (i.e., revenue) falls on Plaintiffs, while the
burden of production on “costs, expenses, and other deductions to show the actual or net benefit
the defendant received” falls on Google. See Meister v. Mensinger, 230 Cal. App. 4th 381, 399
(2014). To arrive at the asserted net benefit of $2.36 billion, Plaintiffs begin with a revenue
estimate of $4.14 billion. That figure comes from their expert, Lasinski, who determined that
Google made money from the collection of sWAA-off data by tracking “conversions,” or the
frequency with which an ad caused a user to do something valuable with the advertiser, such as
purchase the advertiser’s product. Conversion tracking is valuable because advertisers want to
know that their ads are well-placed. By providing evidence that Google is successfully placing
their ads, Google is able to entice advertisers to place more ads through Google. Thus, to isolate
revenues attributable to the collection of sWAA-off data, Lasinski (1) identified Google’s total
U.S. advertising revenues from products that used sWAA-off data to track ad conversions during
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 11 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
the class period; (2) estimated the portion of those revenues attributable to Plaintiffs (i.e., signed-
in, sWAA-off users); and (3) multiplied those revenues by Google’s estimated percentage of
revenue attributable to conversions.
Before addressing the failings of Lasinski’s analysis, an aside about the role of the
advisory jury verdict is appropriate. Plaintiffs acknowledge that, by awarding damages of $425
million and declining to award any disgorgement, the jury necessarily concluded that Google did
not profit from its conduct by more than $425 million. If it did, the jury would have been legally
obligated to award disgorgement. Plaintiffs thus accept, as they must, that they are asking this
court to depart from the jury’s determination in awarding disgorgement.
Google thinks that is not permissible. In its view, the Seventh Amendment requires
acceptance of the implicit factual conclusions the jury made in evaluating the legal claims, and it
contends that the jury’s rejection of liability under CDAFA means it must have thought Google
either did not “knowingly access[] Plaintiffs’ mobile devices” or did not “t[ake], cop[y], or ma[ke]
use of data from those . . . devices without Plaintiffs’ permission.” Jury Inst. No. 14 (CDAFA). If
that is so, Google argues, then it cannot be “unjust” for Google to retain the benefits of the data
access—which is why the jury declined to award disgorgement.
Google’s position presents several problems. First, it focuses on the jury’s CDAFA
determination to the exclusion of the jury’s intrusion upon seclusion and invasion of privacy
determinations. Even if it is true the jury concluded that Google did not use Plaintiffs’ data
“without [their] permission,” it also concluded that Google “intentionally intruded upon Plaintiffs’
objectively reasonable expectation” that Google “would not collect, save, or use the data at issue.”
Jury Inst. 20 (intrusion upon seclusion) (emphasis added). In light of that finding, it is impossible
to say with certainty that the jury thought it was just for Google to retain the benefits of the data
access.
In fact, it seems much more likely that the jury concluded that it would be unjust for
Google to retain those benefits but that the $425 million damages award sufficed. That is, it
appears the jury thought that Google made less than $425 million in profits from the illegally
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 12 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
acquired data, notwithstanding Plaintiffs’ evidence to the contrary. That conclusion is not binding
at this stage because it is relevant only to Plaintiffs’ request for equitable disgorgement; it was of
no moment in the jury’s evaluation of the legal claims. Consequently, the Seventh Amendment
does not require the jury’s conclusion on that point be given any deference.
That said, there would be no point in impaneling an advisory jury on disgorgement if the
jury’s determinations could not even be considered. The court must “make its own independent
assessment of the issues submitted to the advisory jury,” Hansen v. Safeway, Inc., 2010 WL
2593611, at *3 (N.D. Cal. June 22, 2010), and the Ninth Circuit will review those findings “as if
there had been no verdict from [the] advisory jury,” Ashland v. Ling-Temco-Vought, Inc., 711 F.2d
1431, 1438 (9th Cir. 1983). However, in making that determination, the advisory verdict can be
among the many factors considered.
On the merits, there are good reasons to be skeptical of Lasinski’s analysis—as the jury
evidently was. Lasinski arrived at his revenue figure by starting with the total U.S. revenues from
App Promo, AdMob, and Ad Manager during the class period. He then attempted to isolate the
revenues attributable to signed-in users and then insolate again the revenues attributable to the
subset of signed-in users that had the sWAA button off. From there, he attempted to identify the
revenues earned from conversion tracking with sWAA-off data before stripping out the revenues
from two accounts—Dasher and Unicorn—that were not part of the class.
The biggest vulnerability in Lasinski’s analysis is in his identification of the revenues
attributable to conversion tracking with sWAA-off data. Lasinksi represented that he used the
percentage of revenue that “Google attributes . . . to conversion measurement.” However,
Google’s expert, Ms. Langner, explained that the percentage of revenue that Google “attributed to
. . . conversion measurement” was simply the percentage of ad spend that ultimately led to a
conversion. Trial Tr. at 1313:18–24. So, for example, if an advertiser spends $100 on ads with the
goal of getting its app downloaded, and $55 of that ad spend results in the app being downloaded,
Google will “attribute” 55% of its ad revenues to “conversion measurement.” That, of course, does
not mean that $55 of ad revenue came from Google’s collection of sWAA-off data and the
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 13 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
resultant conversion tracking. The $55 is spent before any conversion tracking is done; the
conversion tracking is simply a measure of the success of the ad on Google.
In truth, Google makes money from conversion tracking very indirectly. As Langner
testified, conversion tracking helps Google demonstrate to advertisers that their ads were
successful, which in turn induces those advertisers to spend more on ads with Google. See Trial
Tr. at 1298:12–17 (“Google benefits from conversion measurement by demonstrating that the ads
are effective. When advertisers see that their ads are effective, they will want to buy more ads with
Google.”). Therefore, to isolate properly the impact of the sWAA-off data, Plaintiffs would need
to compare two figures: (1) the amount advertisers spent with Google after being shown
conversion analytics generated with sWAA-off data and (2) the amount those advertisers would
have spent had the conversion analytics generated with sWAA-off data not been available.
Plaintiffs failed to engage in that exercise. In their reply brief, they argue that, absent
conversion tracking, advertisers would have paid less—or potentially “nothing at all”—because
they would not have understood the return on their investment, but the evidence does not
substantiate that assertion. Plaintiffs point to the testimony of Steve Ganem, who testified that the
loss of sWAA-off data would “cripple” Google Analytics. Trial Tr. at 1176:17–22. Maybe so, but
Google Analytics is simply a tool for advertisers to track the performance of those ads. Crippling
Google Analytics does not imply that the antecedent ad spending would go to zero. It is true that
David Monsees testified that sWAA-off data is “essential to provide the ad services,” Trial Tr. at
300:13–14, but it is quite the leap to go from that testimony to the conclusion that all ad spend that
resulted in a conversion would have gone away without sWAA-off data.
Moreover, other evidence suggests that Google may not have lost that much if it did not
collect sWAA-off data. Langner testified that roughly 80 percent of advertisers use a third-party
conversion tracking service to audit ad efficacy, allowing those advertisers confidently to place
ads with Google even if Google could not tell them how effective the ad was. See Trial Tr. at
1298:20–24. Ganem testified that those third-party providers are often preferred by advertisers
because they can measure ad performance across platforms—such as Google, Meta, and TikTok—
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 14 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
whereas Google can only measure it within its own platform. See Trial Tr. at 1176:4–12. To be
sure, Plaintiffs contend that those third-party conversion tracking services would be rendered
ineffective because they too rely on sWAA-off data to assess which ads came from where and,
therefore, how to attribute conversions. See Ex. 25 (Black Dep. Tr.) at 34:8–16. However, that
does not appear to have been Ganem’s understanding. When he was asked whether advertisers
could “use a different product to measure ad performance” if Google could not measure
conversions, he said: “Yes. They would probably use AppsFlyer or one of the other ad
measurement tools.” Trial Tr. at 1177:6–9. If Plaintiffs were right that loss of the sWAA-off data
would impact all conversion tracking providers, that answer would make no sense.
Even if Lasinski’s high-level approach to calculating revenues derived from sWAA-off
data were accepted, more specific problems abound. For instance, the parties hotly dispute
whether the revenue figures that Lasinski used for DVA App Promo (one of the tools Google
offered to advertisers) were for the United States or the entire world. Langner explained that the
P&L report Lasinski relied on for 2017 to 2019 contained global revenue figures, which of course
would undermine that portion of the calculation because it would mean the subsequent analytical
steps were done on a much higher baseline revenue number. See Trial. Tr. at 1315:16–1316:13.
Plaintiffs have various arguments to suggest Google’s expert is mistaken, including an admission
(which was later corrected) by Langner that these numbers were for the United States. Plaintiffs
also argue that the exhibit used to show Lasinski’s error was made for litigation, making it
inherently unreliable.
At a minimum, these disputes highlight the ambiguity over how much money Google
made from the collection of sWAA-off data. Ambiguity in this instance redounds to Plaintiffs’
disadvantage, as it is their burden to establish the revenue Google obtained from the misconduct.
For all the reasons articulated above, they have not met that burden.
c. Decertification
Google contends that decertification is appropriate because there are no common issues as
to whether its collection of Plaintiffs’ data was highly offensive—a necessary element of both the
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 15 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
invasion of privacy claim and the intrusion upon seclusion claim. Specifically, Google argues that
the evidence at trial revealed that the offensiveness of the intrusion stemmed from the type of data
that it collected. Because the class members used different third-party apps which collected
different data on different types of users, assessing offensiveness using common proof is
impossible.
To demonstrate that Plaintiffs’ theory of offensiveness turned on the specific data that a
third-party app collected about a specific user, Google homes in on the testimony of Anibal
Rodirguez, the named plaintiff. Rodriguez testified about the various apps he used on his phone
and whether he found the collection of anonymized data from those apps to be offensive. As to
some—including the NightOwl Companion app (which was used to manage sleep apnea), the
MIPC camera app (which connected to the cameras inside his home), and the Career Karma app
(which assisted in finding employment)—he testified that the data collected was highly personal
and private. See Trial Tr. at 812:23–814:1 (“Q: Do you want Google knowing all these things? A:
No. They shouldn’t.”). However, Rodriguez seemed not to be troubled by the collection of data
from other apps—he testified that “the Target app sharing [his] data with Google Analytics” was
“[n]ot a big deal.” Id. at 843:12–16.
Moreover, Rodriguez testified that he was troubled by Google’s ability to piece together a
comprehensive picture of his private life from the constellation of collected data. As he put it,
Google’s data collection practices allowed it to “put the pieces of the puzzle together and know
who [he is].” Id. at 857:21–858:4. This admission proves the inappropriateness of class-wide
treatment, Google claims, because the intrusion turns on which puzzle pieces Google had access
to, which in turn is determined by which apps each individual class member downloaded.
Google’s argument rests on a constricted view of the Plaintiffs’ theory of offensiveness.
Plaintiffs presented ample evidence from which a jury could have determined that Google’s
decision to collect sWAA-off data was highly offensive because it misled users about its plan to
do so. For instance, Plaintiffs introduced a Google-commissioned survey in which the participants
revealed an expectation that “turning off [the sWAA-off] toggle [would] stop their activity from
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 16 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
being saved.” PX-002, at 20. Plaintiffs also put forth evidence from Google employees
acknowledging that Google’s disclosures gave users a “false sense of security that their data is not
being stored at Google, when in fact it is.” PX-003, at 1. In that same email, the Google employee
described the wording of Google’s disclosure as “very deceptive.” Id.; see also PX-004, at 2
(acknowledging that sWAA disclosures were “intentionally vague”).
In his testimony, Rodriguez concurred that Google’s dishonesty made the collection of his
data offensive. He explained that he had “a problem” with the collection of data from “any app”
because “if [he said] not to collect any data,” he “expect[ed]” his data “not to be collected.” Trial
Tr. at 836:4–9. To substantiate that expectation, Rodriguez testified expansively about his
interpretation of Google’s privacy policy. He expressed dismay at “why [Google] would use th[e]
term [privacy control]” when, in fact, he had “no control over” what data was collected. Id. at
810:18–811:2. He further testified that he was “pretty pissed” that Google “promised something
that wasn’t really real.” Id. at 816:24–817:8. That testimony leaves little doubt that Rodriguez
found Google’s conduct offensive because it was misleading.
At best, Google has established that the nature of the data collected played a supporting
role in Plaintiffs’ theory of offensiveness. That, however, does not mean that an individualized
inquiry is necessary to determine if Google’s conduct was highly offensive. Rodriguez expressed
unease at Google collecting various “puzzle pieces” about his life from the different apps on his
phone. He acknowledged that some pieces, like that from NightOwl Companion, might have been
bigger than others, like that from Target, but he nevertheless thought it important that each piece
got Google closer to a full picture of his private life. For that reason, he explained that the data
collected from his alarm clock app (which, of course, is independently innocuous) would be “just
as private as a naked picture.” Trial Tr. at 836:4–12.
Properly understood, Plaintiffs’ theory of offensiveness is well-suited to class-wide
treatment. The questions were (1) whether Google lied about its data-collection practices and (2)
whether the anonymized data was of a kind that allowed Google to build a fuller picture of the
user—even if Google never put that picture together. Neither question requires individualized
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 17 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
inquiry. The first can be answered by evaluating Google’s class-wide disclosures and data-
collection practices, and the second can be answered by evaluating the nature of anonymized data.
The jury ultimately answered both questions in the affirmative, and there is no reason to upset
those determinations now.
Google offers two additional reasons to decertify the class. First, it contends that the
inclusion of personally identifiable information in sWAA-off data was not an issue common to the
class. As Google sees things, a “central contention” of Rodriguez’s testimony was that his name,
email address, and phone number were included in the data. See Trial Tr. at 826:10. It is true that
Rodriguez expressed discomfort about the collection of this personal information, but it is not true
that Plaintiffs’ theory of offensiveness turned in any way on that being a common experience. As
Plaintiffs explain, one of the reasons that the (undisclosed) collection of anonymized data is highly
offensive is that it creates a risk that deanonymized information may slip through the cracks.
Whether that risk materialized for some members of the class is beside the point; what mattered is
that Google lied to its users regarding their ability to assume that risk or not.
Second, Google argues that there were significant differences within the iOS class that
preclude collective treatment. Specifically, Google points out that roughly halfway through the
class period, Apple implemented a new feature within iOS which pushed to users a pop-up that
asked whether they wanted the app they were using “not to track.” If the user said yes, Google
would not be sent the user’s device ID. If the user said no, Google would continue tracking
sWAA-off data as it had previously. In Google’s view, this selection sheds light on consent and
Plaintiffs’ expectation of privacy.
This argument fails to establish that common issues do not predominate over individual
ones. As to consent, Google fails to articulate precisely how permitting the app to track within iOS
gave Google consent to collect sWAA-off data. Even those members of the iOS class that
answered no to the prompt (and thus permitted the app “to track”) had the sWAA button turned off
and, therefore, had an expectation that Google was not collecting any data. That was, evidently,
the conclusion of the jury, which rejected Google’s consent defense even though it heard evidence
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 18 of 19

ORDER DENYING EQUITABLE RELIEF AND CLASS DECERTIFICATION
CASE NO. 20-cv-04688-RS
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
United States District Court
Northern District of California
about the pop-up that Apple pushed out to its users.
Counterintuitively, Google also seems to think that those who answered yes to the prompt
(i.e., those that asked the app “not to track”) may have consented to Google’s collection of their
anonymized data. This theory rests on a negative implication: Because users understood the
“tracking” in the iOS prompt to refer only to identified data, they implicitly consented to the
collection of anonymized data. However, both Google’s premise and its conclusion lack a basis in
the evidence. It has not pointed to anything suggesting that iOS users understood the tracking
prompt to cover only identified data, nor did they put on any testimony indicating that those
users—had they understood the prompt in the way Google presses—were consenting to the
collection of anonymized data. Decertification requires more than speculation.
The core of Plaintiffs’ theory of offensiveness has remained consistent throughout this
litigation: Google collected Plaintiffs’ data after it said it would not. The nature of the data
collected mattered, but its import could be assessed without delving into the apps that each class
member downloaded. Class-wide treatment remains appropriate.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for injunctive relief is denied, Plaintiffs’
request for disgorgement is denied, and Google’s motion to decertify the class is denied.
IT IS SO ORDERED.
Dated: January 30, 2026
______________________________________
RICHARD SEEBORG
Chief United States District Judge
Case 3:20-cv-04688-RS Document 721 Filed 01/30/26 Page 19 of 19