Google Must Prove Plaintiffs Took Affirmative Action to Show Assent, Says Response
Google’s “global arguments” for dismissal of Mary Smith’s fraud complaint involving Google Analytics' tracking pixel on tax-filing websites “lack merit,” said her response Monday to Google’s motion to dismiss her class action, part of an Oct. 9 consolidated complaint, in…
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U.S. District Court for Northern California in San Jose (docket 5:23-cv-03527). Google argues that because privacy policies on H&R Block, TaxAct and TaxSlayer disclosed the use of Google Analytics, plaintiffs consented to the disclosure of their tax-filing information to the defendant, said the response. “In Google’s view, these privacy policies are ‘judicially noticeable’ and therefore establish consent as a matter of law,” the response said, but the court “should reject Google’s position and its request for judicial notice” of the policies, which aren’t referenced in the complaint. Google submitted no evidence that any of the plaintiffs saw and agreed to the documents relied on by Google to support any consent, said the response: “Google must show that Plaintiffs took ‘affirmative action to demonstrate assent,’ but it has not done so,” it said. The privacy policies referenced are dated either January 2023 or October 2023, but plaintiffs allege their financial information was disclosed “years before those dates,” said the response. Google asks the court to “draw inferences in its favor” from “random versions” of the privacy policies, and it also “recycles an argument already rejected in similar cases involving the Meta tracking pixel,” it said, citing Gershzon v. Meta Platforms and In re Meta Pixel Healthcare Litigation. U.S. District Judge for Northern California Yvonne Gonzalez Rogers also rejected that argument a few months ago in Brown v. Google, it said. In Smith’s case, Google’s argument similarly lacks merit because “it contradicts the pleadings and requires drawing inferences in Google’s favor,” and the privacy policies Google cites didn’t disclose the sharing of “tax-filing or other confidential financial information,” it said. Smith alleges Google Analytics’ tracking pixel, embedded in the JavaScript of online tax preparation websites, sent “massive amounts” of private tax return information such as income, refund amounts, filing status and scholarship information to Google, without taxpayers’ consent, “to improve its ad business and other business tools,” in violation of California’s Invasion of Privacy Act and the Federal Wiretap Act.