Korein Tillery’s Marc Wallenstein Secures Unanimous Ninth Circuit Ruling That Cellular Data is Property Under California Law
February 28, 2024
Korein Tillery, led by partner Marc A. Wallenstein, and co-counsel from Bartlit Beck, won a significant victory for consumers nationwide against Google before the United States Court of Appeals for the Ninth Circuit on Wednesday.
In Taylor v. Google, No. 22-16654 (9th Cir. Feb. 28, 2024), the Ninth Circuit unanimously reversed the district court’s decision dismissing Plaintiffs’ conversion claims. Plaintiffs allege that Google secretly consumes significant quantities of Android users’ cellular data for its own purposes, without their knowledge or consent, including when the phone is completely idle in a pocket or on a nightstand. Plaintiffs argue that this amounts to conversion—meaning theft—of the cellular data by Google.
The trial court had previously dismissed those claims on the grounds that cellular data does not qualify as property under California law. The Ninth Circuit reversed, holding that cellular data is property under California law, which allows Plaintiffs to pursue their claims on behalf of Android users against Google to recover the fair market value of the cellular data that Google unlawfully took. Taylor is the first precedential decision to assess whether cellular data is property. The Ninth Circuit issued its unanimous reversal a mere two weeks following oral argument—a rapid result for a complex appeal, signaling the strength of the case.
Korein Tillery also represents a class of California users of Android devices in a parallel lawsuit currently pending in California state court involving the same claims, Csupo v. Google, No. 19CV352557 (Santa Clara Super. Ct.). The trial court in Csupo recently certified the case to proceed as a class action, and a trial has been set for December 9, 2024. Now that the dismissal in Taylor has been reversed, Taylor will return to federal district court for further proceedings, including discovery and class certification, running at the same time as Csupo.
Classwide damages on behalf of California Android users in Csupo are estimated to be between $136 million and $452 million (depending on the relevant time period), and potentially much more; damages in Taylor, on behalf of a larger nationwide class of Android users, are estimated to be at least six times higher.
The Korein Tillery team who secured this result was led by partner Marc A. Wallenstein, and included Carol O’Keefe, George Zelcs, Chad Bell, Ryan Cortazar, and Devin Dippold, as well as Glen Summers, Karma Giulianelli, Alison Wheeler, and Evgeny Taranda of Bartlit Beck LLP, and numerous hardworking staff at both law firms.
