The opinion
)United States District Court
District of Massachusetts
)
PAULA RIDENTI, as parent and )
guardian of R.A. and R.M.A., )
minors; individually and on )
behalf of all others similarly )
situated, )
) Civil Action No.
Plaintiff, ) 20-10517-NMG
)
v. )
)
GOOGLE LLC, et al., )
)
Defendants. )
)
MEMORANDUM & ORDER
GORTON, J.
This is a putative class action brought by plaintiff Paula
Ridenti, as parent and guardian of two minor children, against
Google LLC and YouTube, LLC (collectively “the Google Companies”
or “defendants”) in which plaintiff alleges that the Google
Companies collected, used and/or disclosed without parental
consent the personal information of her children and other
minors under the age of 13, in violation of Massachusetts
General Laws Chapter 93A, Sections 2 and 9 (“Chapter 93A”).
Pending before this Court is defendants’ motion to transfer
this case to the United States District Court for the Northern
District of California (Docket No. 12) for consolidation with
another putative class action, Hubbard, et al. v. Google LLC, et
al., No. 5:19-cv-07016-BLF (N.D. Cal.) (“Hubbard”). For the
reasons that follow, that motion will be allowed.
I. Background
A. The Parties and Facts
Plaintiff Paula Ridenti is a resident of Massachusetts and
the parent and legal guardian of two children under the age of
13, R.A. and R.M.A., both of whom have, within the past four
years, regularly viewed YouTube videos on channels directed
primarily to young children. Defendant Google LLC (“Google”) is
a Delaware limited liability company with its principal place of
business in Mountain View, California. It is the parent company
of defendant YouTube, LLC (“YouTube”), a Delaware limited
liability company with its principal place of business in San
Bruno, California.
YouTube is a popular video-sharing platform operated by
Google which is accessible through web browsers, smart
televisions, mobile applications on smartphones and tablets and
other methods. Most videos are freely accessible to anyone with
internet access, without the need to register, log-in to any
account or verify the age of the viewer. Many of those videos
are, in fact, catered specifically to children under the age of
13 and expressly labeled as such.
Plaintiff contends that the Google Companies track the
online activities and viewing history of all YouTube users,
including those under the age of 13. They do so without first
obtaining parental consent. The Google Companies then
purportedly use that personal information to present to the
minors “customized” or “targeted” advertisements tailored to
their particular interests.
B. Procedural History
In 1998, Congress enacted the Children’s Online Privacy
Protection Act, 15 U.S.C. §§ 6501 et seq. (“COPPA”), thereby
making it
unlawful for an operator of a website or online service
directed to children, or any operator that has actual
knowledge that it is collecting personal information from a
child, to collect personal information from a child . . .
without verifiable parental consent.
15 U.S.C. § 6502.
In September, 2019, the Federal Trade Commission (“the
FTC”) filed a complaint against the Google Companies for
knowingly collecting, using and/or disclosing the personal
information of children under the age of 13 without parental
consent. That conduct, the FTC alleged, constitutes unfair and
deceptive acts and practices, in violation of COPPA, Federal
Trade Commission Act, 15 U.S.C. § 45(a)(1) (“the Act”) and the
regulations adopted thereunder. Soon thereafter, the parties
entered into a $170 million settlement agreement.
In October, 2019, Nichole Hubbard and others (“the Hubbard
plaintiffs”) filed in the Northern District of California a
class action complaint against the Google Companies and others,
alleging that defendants caused the personal information of
children to be collected and analyzed without parental consent
in order to subject the minors to targeted advertising. That
conduct, the Hubbard plaintiffs assert, violates state privacy
laws (Count I), the California Unfair Competition Law, Cal. Bus.
& Prof Code § 17200 (Count II) and the California Constitutional
Right to Privacy, Cal Const. Art. 1, § 1 (Count III) and results
in unjust enrichment (Count IV).
In March, 2020, plaintiff brought this action on behalf of
her children and a putative “Nationwide Class” consisting of
[a]ll children residing in Massachusetts who, at a time
when the children were under the age of thirteen, viewed
videos on YouTube and from whom the Google Companies
collected, used, or disclosed personal information without
first obtaining verified parental consent.
She alleges that the collection, use and disclosure of the
personal information of young children (including her own) by
the Google Companies constitutes unfair and deceptive practices,
as defined by FTC regulations, in violation of Chapter 93A.
In April, 2020, the Hubbard plaintiffs filed in the
Northern District of California their second amended complaint,
adding five more plaintiffs and 12 claims to include, inter
alia, a Massachusetts resident, a Massachusetts subclass and a
claim under Chapter 93A. That proposed subclass represents
all children and parents and/or legal guardians of persons
residing in the Commonwealth of Massachusetts who are
younger than the age of thirteen and used YouTube, or were
younger than the age of thirteen when they used YouTube,
and from whom Defendants collected, used, or disclosed
Personal Information without first obtaining verified
parental consent.
Thereafter, a motion to dismiss the second amended Hubbard
complaint was filed and this action was stayed pending this
Court’s decision on the pending motion to transfer. In
December, 2020, the Northern District of California dismissed
the Hubbard complaint with leave to amend, having concluded that
the state law claims therein were preempted by COPPA. The
Hubbard plaintiffs subsequently filed a third amended complaint,
as to which a motion to dismiss is currently pending.
II. Motion to Transfer
A. Legal Standard
Pursuant to 28 U.S.C. § 1404(a), the Google Companies seek
to transfer the instant case to the United States District Court
for the Northern District of California for consolidation with a
related action, Hubbard. Section § 1404(a) states:
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
civil action to any other district or division where it
might have been brought . . .
While the decision to transfer a case under § 1404 lies
solely within the discretion of the trial court, there is a
presumption in favor of the plaintiff’s choice of forum and the
defendant must bear the burden of proving that a transfer is
warranted. Theophile v. Conklin, No. 17-cv-10868, 2017 WL
3140363, at *3 (D. Mass. July 24, 2017). Factors to be
considered in determining whether transfer is warranted include
(1) the plaintiff’s choice of forum, (2) the relative
convenience of the parties, (3) the convenience of the
witnesses and location of documents, (4) any connection
between the forum and the issues, (5) the law to be applied
and (6) the state or public interests at stake.
Viatech Tech., Inc. v. Adobe Inc., No. 19-cv-11177, 2020 WL
1235470, at *2 (D. Mass. Mar. 13, 2020).
Where, as here, actions involving similar issues and
similar parties are pending in different federal district
courts, “obvious concerns” arise, including
wasted resources because of piecemeal litigation, the
possibility of conflicting judgments, and a general concern
that the courts may unduly interfere with each other’s
affairs.
TPM Holdings, Inc. v. Intra-Gold Industries, Inc., 91 F.3d 1, 4
(1st Cir. 1996). To avoid such concerns, transfer to the court
of the first-filed action is generally preferred. Id.; Waithaka
v. Amazon.com, Inc., 404 F. Supp. 3d 335, 350 (D. Mass. 2019)
(finding application of the first-filed rule appropriate having
considered “(1) which action was filed first; (2) the similarity
of the parties; and (3) the similarity of the issues”).
B. Application
The parties do not dispute that transfer is permissible in
this case. Plaintiffs could have brought this action in the
Northern District of California, as defendants are limited
liability companies with their principal places of business
within that district. See 28 U.S.C. §§ 1391(b), 1404(a). Thus,
the only question before this Court is whether transfer is
warranted based on the interests of justice, judicial efficiency
and convenience.
The Google Companies argue that those interests require
this Court to transfer this action to the Northern District of
California because: 1) the California case was filed first,
2) the cases are substantially similar and 3) there is an acute
risk of wasted resources and inconsistent verdicts if both
actions proceed in separate courts. Plaintiff responds that the
application of the first-to-file rule is inappropriate here
because the cases are not identical and the instant action is
focused and “local”, whereas Hubbard is a “potpourri of fourteen
claims and eight classes”. Plaintiff also makes a convenience
argument, contending that to require her to pursue this case in
California would impose a significant burden on a Massachusetts
plaintiff.
Having considered the parties’ submissions, this Court
determines that transfer pursuant to the first-filed rule is
warranted under these circumstances. The parties in this action
are substantially similar to the parties in the Hubbard case.
Both actions name Google and YouTube as defendants and include
nearly identical proposed classes of Massachusetts residents.
See Jimenez v. Kohl’s Department Stores, Inc., 480 F. Supp. 3d
305, 307 (D. Mass. 2020) (explaining that the parties need only
be similar, not identical).
Furthermore, the cases raise substantially similar issues,
namely, whether the Google Companies intentionally collected the
personal information of children under the age of 13 without
parental consent and subsequently subjected those children to
targeted advertising. Both also raise claims under Chapter 93A
and will require the presiding judicial officer to consider
whether that state law claim is preempted by COPPA. See Hubbard
v. Google LLC, -- F. Supp. 3d --, 2020 WL 7495084 (N.D. Cal.
Dec. 21, 2020) (finding the Hubbard plaintiffs’ state law
claims, including under Chapter 93A, to be preempted by COPPA);
see also 15 U.S.C. § 6502(d) (“No State or local government may
impose any liability . . . in connection with an activity or
action described in this chapter that is inconsistent with the
treatment of those activities or actions under this section.”).
Finally, although there is, typically, a presumption in
favor of plaintiff’s choice of forum, that choice is accorded
less weight here, wherein plaintiff asserts class claims in a
second-filed putative class action. See Johnson v. New York Life
Ins. Co., No. 12-cv-11026, 2013 WL 1003432, at *4 (D. Mass. Mar.
14, 2013) (“A plaintiff’s choice of forum is less significant,
for example, in the context of class actions.”). Because the
issues raised in this lawsuit fall substantially within the
scope of Hubbard, the first-filed action, the interests of
judicial economy and in avoiding inconsistent judgments weigh
heavily in favor of transferring this action to the Northern
District of California. See Jimenez, 480 F. Supp. 3d at 307
(noting that when the second-filed class action falls within the
scope of a larger, nationwide, first-filed class action,
transfer to the first-filed action is generally warranted).
Thus, this Court will allow defendant’s motion and recommend
that this case be consolidated with Hubbard.
ORDER
For the foregoing reasons, defendants’ motion to transfer
(Docket No. 12) is ALLOWED. This case is hereby TRANSFERRED to
the United States District Court for the Northern District of
California.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated March 30, 2021