Written by Julia Siripurapu, CIPP
U.S. District Court Judge Ronald M. Whyte has issued an order granting in part and denying in part Google’s Motion to Dismiss the class action filed against the Company on March 7 in the U.S. District Court for the Northern District of California as a result of unauthorized children’s in-app purchases in the Google Play Store. As discussed in detail in our prior blog post, the lawsuit was filed by a New York mother on behalf of herself and other parents whose minor children downloaded free or relatively inexpensive child-directed games from the Google Play store and then incurred charges for purchasing items that cost money within the app without parental consent or authorization.
Judge Whyte granted Google’s motion to dismiss the following claims, in each case, with 30 days leave to amend:
- Declaratory Judgment;
- Violations of the Consumers Legal Remedies Act (“CLRA”)-the plaintiff alleged that Google violated the CLRA by concealing the ability to use real-world currency to purchase game currency in applications labeled as “free,” with the intent of inducing minors to purchase game currency;
- Unlawful business acts or practices under California’s Unfair Competition Law, Business & Professions Code § 17200, et seq. (“UCL”)-the plaintiff alleged that Google made fraudulent misrepresentations and omissions regarding Google’s free and nominally priced apps;
- Unfair business acts or practices-the plaintiff alleged that she and the class suffered substantial harm in the aggregate by incurring Google Play charges that they did not explicitly authorize and that she could not have reasonably avoided the injury as she was not given notice that she was approving more than a single $0.99 cent transaction; and
- Fraudulent business acts or practices-the plaintiff alleged that Google’s business acts or practices were likely to deceive the public.
However, Judge Whyte did not dismiss the following claims made by the plaintiff:
- Unfair, deceptive or misleading advertising under the UCL-the plaintiff alleged that Google actively advertised, marketed and promoted certain gaming applications as “free” with the intent to lure minors to purchase game currency in a manner likely to deceive members of the public;
- Unjust enrichment and restitution under California law-the plaintiff alleged that Google was unjustly enriched at the plaintiff’s and the class’s expense by collecting money that Google was not entitled to, and as a result, the plaintiff and the class are entitled to recover from Google all such amounts that were wrongfully collected and improperly retained, plus interest, and
- Breach of duty of good faith and fair dealing under California law-the plaintiff alleged that Google breached its contractual duty of good faith and fair dealing when dealing with the plaintiff and the class. Specifically, by encouraging minors to make in-app purchases without providing notice to the minors’ parents/guardians of the 30 minute window in which the parents/guardians’ passwords are not required to make subsequent purchases, Google frustrated the common purpose of Google’s Terms of Service signed by the plaintiff and the class by forcing parents/guardians to pay for purchases that Google induced the minors to make.
Stay tuned for further developments on this case!