Cara Jones v. Google LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARA JONES, as parent and guardian

of E.J., N.J., A.J., and L.J., minors;

JUSTIN EFROS, as parent and No. 21-16281

guardian of J.A.E. and J.R.E., Minors;

NICHOLE HUBBARD, as parent and D.C. No. 5:19-cv-

guardian of C.H., a minor; individually 07016-BLF

and on behalf of all others similarly

situated; RENEE GILMORE, as

parent and guardian of M.W., a minor; ORDER AND

JAY GOODWIN, as parent and AMENDED

guardian of A.G., a minor; BOBBI OPINION

DISHMAN, as parent and guardian of

C.D., a minor; PAULA RIDENTI, as

parent and guardian of R.A. and

R.M.A., minors; C.H.; E.J.; N.J.; A.J.;

L.J.; J.A.E.; J.R.E.; M.W.; A.G.; C.D.,

Plaintiffs-Appellants,

v.

GOOGLE LLC; YOUTUBE, LLC;

MATTEL, INC.; DREAMWORKS

ANIMATION LLC; HASBRO, INC.;

HASBRO STUDIOS, LLC; THE

CARTOON NETWORK, INC.;

CARTOON NETWORK STUDIOS,

INC.; POCKETWATCH, INC.;

2 JONES V. GOOGLE, LLC

REMKA, INC.; RTR PRODUCTION,

LLC; RFR ENTERTAINMENT,

INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted August 31, 2022

Seattle, Washington

Filed December 28, 2022

Amended July 13, 2023

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Gabriel P. Sanchez, Circuit Judges.

Order;

Opinion by Judge McKeown

JONES V. GOOGLE, LLC 3

SUMMARY *

Preemption / Children’s Online Privacy Protection Act

The panel filed (1) an order denying a petition for panel

rehearing, denying a petition for rehearing en banc, and

amending the opinion filed on December 28, 2022; and (2)

an amended opinion reversing the district court’s dismissal,

on preemption grounds, of a third amended complaint in an

action brought by a class of children, appearing through their

guardians ad litem, against Google LLC and others, alleging

that Google used persistent identifiers to collect data and

track their online behavior surreptitiously and without their

consent in violation of the Children’s Online Privacy

Protection Act (“COPPA”).

Google owns YouTube, an online video-sharing

platform that is popular among children. Google’s targeted

advertising is aided by technology that delivers curated,

customized advertising based on information about specific

users. Google’s technology depends partly on what Federal

Trade Commission (“FTC”) regulations call “persistent

identifiers,” information “that can be used to recognize a

user over time and across different Web sites or online

services.” 16 C.F.R. § 312.2. In 2013, the FTC adopted

regulations under COPPA that barred the collection of

children’s “persistent identifiers” without parental consent.

The plaintiff class alleged that Google used persistent

identifiers to collect data and track their online behavior

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 JONES V. GOOGLE, LLC

surreptitiously and without their consent. They pleaded only

state law causes of action, but also alleged that Google’s

activities violated COPPA. The district court held that the

“core allegations” in the third amended complaint were

preempted by COPPA.

The panel considered the question of whether COPPA

preempts state law claims based on underlying conduct that

also violates COPPA’s regulations. Express preemption is a

question of statutory construction. COPPA’s preemption

clause provides: “[n]o State or local government may

impose any liability . . . that is inconsistent with the treatment

of those activities or actions under this section.” 15 U.S.C.

§ 6502(d). The panel held that state laws that supplement,

or require the same thing, as federal law, do not stand as an

obstacle to Congress’s objectives, and are not

“inconsistent.” The panel was not persuaded that the

insertion of “treatment” in the preemption clause evinced

clear congressional intent to create an exclusive remedial

scheme for enforcement of COPPA requirements. The panel

concluded that COPPA’s preemption clause does not bar

state-law causes of action that are parallel to, or proscribe the

same conduct forbidden by, COPPA.

Even if express preemption is not applicable, preemptive

intent may be inferred through conflict preemption

principles. The panel held that although express and conflict

preemption are analytically distinct inquiries, they

effectively collapse into one when the preemption clause

uses the term “inconsistent.” For the same reasons that the

panel concluded there was no express preemption, the panel

concluded that conflict preemption does not bar the

plaintiffs’ claims.

JONES V. GOOGLE, LLC 5

COUNSEL

David S. Golub (argued), Steven L. Bloch, and Ian W. Sloss,

Silver Golub & Teitell LLP, Stamford, Connecticut;

Jonathan K. Levine, Elizabeth C. Pritzker, and Caroline C.

Corbitt, Pritzker Levine LLP, Emeryville, California; for

Plaintiffs-Appellants.

Edith Ramirez (argued), Adam Cooke (argued), Jessica L.

Ellsworth, Michelle A. Kisloff, and Jo-Ann T. Sagar, Hogan

Lovells US LLP, Washington, D.C.; Christopher Cox,

Hogan Lovells US LLP, Menlo Park, California; Helen Y.

Trac, Hogan Lovells LLP, San Francisco, California;

Christopher Chorba and Jeremy S. Smith, Gibson Dunn &

Crutcher LLP, Los Angeles, California; Anna Hsia,

ZwillGen Law LLP, San Francisco, California; Jeffrey

Landis and Adya Baker, ZwillGen Law PLLC, Washington,

D.C.; Jonathan H. Blavin, Munger Tolles & Olson LLP, San

Francisco, California; Jordan D. Segall and Ariel T.

Teshuva, Munger Tolles & Olson LLP, Los Angeles,

California; Michael J. Saltz and Elana R. Levine, Jacobson

Russell Saltz Nassim & De La Torre LLP, Los Angeles,

California; Jeremy S. Goldman, Frankfurt Kurnit Klein &

Selz PC, Los Angeles, California; David E. Fink and Sarah

E. Diamond, Venable LLP, Los Angeles, California; Angel

A. Garganta, Venable LLP, San Francisco, California; for

Defendants-Appellees.

Tyler S. Badgley, U.S. Chamber Litigation Center,

Washington, D.C.; Derek L. Shaffer, Quinn Emanuel

Urquhart & Sullivan LLP, Washington, D.C.; for Amicus

Curiae Chamber of Commerce of the United States of

America.

6 JONES V. GOOGLE, LLC

Mariel Goetz, Federal Trade Commission, Washington,

D.C., for Amicus Curiae Federal Trade Commission.

ORDER

The opinion filed on December 28, 2022, and appearing

at 56 F.4th 735, is amended by the opinion filed concurrently

with this order.

The panel has voted to deny the petition for rehearing.

Judge Sanchez has voted to deny the petition for rehearing

en banc and Judges Hawkins and McKeown have so

recommended.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition, Dkt. No. 63, is DENIED. No further

petitions will be entertained.

OPINION

McKEOWN, Circuit Judge:

The Children’s Online Privacy Protection Act

(“COPPA”), 15 U.S.C. §§ 6501–06, gives the Federal Trade

Commission (“FTC”) authority to regulate the online

collection of personal identifying information about children

under the age of 13. The statute includes a preemption

clause that provides that “[no] State or local government

may impose any liability . . . inconsistent with the treatment

JONES V. GOOGLE, LLC 7

of those activities or actions under this section.” Id. §

6502(d). Hewing closely to the language of the preemption

clause, we determine that Congress intended to preempt

inconsistent state laws, not state laws that are consistent with

COPPA’s substantive requirements, such as the state law

causes of action pleaded in the complaint here.

BACKGROUND

Google, best known for its popular search engine, also

owns YouTube, a widely used online video-sharing

platform. YouTube videos are particularly popular among

children, who increasingly have smartphones and tablets that

allow them to access the platform without age verification.

As a testament to YouTube’s popularity among kids, several

popular toy and cartoon brands maintain YouTube

“channels,” where they post content and run advertisements

designed to appeal to young audiences.

Google’s targeted advertising is aided by sophisticated

technology that delivers curated, customized advertising

based on information about specific users. Its tracking tools

can keep tabs on users’ search history, video viewing

history, personal contacts, browsing history, location

information, and several other bits of information about

users’ habits and preferences, including activity on websites

and platforms not owned by Google. Together, these pieces

of information comprise detailed individual “profiles” of

users’ attributes and behaviors, extremely valuable tools for

the advertisers who seek to capitalize on this deep trove of

information about their targeted audiences. The revenue

from these targeted ads is split between Google and the

owners of the relevant YouTube channels; indeed, Google,

whose search and video platforms are largely free to its

users, makes most of its money through ad revenue.

8 JONES V. GOOGLE, LLC

Google’s technology depends partly on what FTC

regulations call “persistent identifiers,” information “that

can be used to recognize a user over time and across different

Web sites or online services.” 16 C.F.R. § 312.2. Examples

include users’ Internet Protocol addresses (“IP addresses”),

numerical labels assigned to each device connected to the

Internet. Google tracks users’ IP addresses on all webpages

using Google’s advertising services. In 2013, the FTC

adopted regulations under COPPA that barred the collection

of children’s “persistent identifiers” without parental

consent. 16 C.F.R. §§ 312.2, 312.5.

In this putative class action, plaintiffs are several minor

children (collectively “the Children”) suing through

guardians ad litem, alleging that Google used persistent

identifiers to collect data and track their online behavior

surreptitiously and without their consent. They seek

damages and injunctive relief, asserting only state law

claims: invasion of privacy, unjust enrichment, consumer

protection violations, and unfair business practices, arising

under the constitutional, statutory, and common law of

California, Colorado, Indiana, Massachusetts, New Jersey,

and Tennessee. The parties agree that all of the claims allege

conduct that would violate COPPA’s requirement that child-

directed online services give notice and obtain “verifiable

parental consent” before collecting persistent identifiers.

The complaint names two sets of defendants. First are

Google LLC and YouTube, LLC, which together own and

operate the YouTube platform (collectively “Google”).

Second are numerous content creators that uploaded child-

directed content to YouTube, including major toy brands and

a television network that showcases cartoons (collectively

the “Channel Owners”). Although the Children plead only

state law causes of action, they also allege that Google’s data

JONES V. GOOGLE, LLC 9

collection activities violated COPPA, and that Google

falsely represented that COPPA’s requirements did not

apply to YouTube, reasoning that it was a platform for

adults, even while knowing that children use the platform.

The complaint alleges that Google did not configure

YouTube to comply with COPPA until January 2020, after

reaching a settlement with the FTC and the New York

Attorney General in the fall of 2019. As for the Channel

Owners, the complaint alleges that they lured children to

their channels, knowing that the children who viewed

content on YouTube would be tracked, profiled, and targeted

by Google for behavioral advertising.

The district court dismissed the Second Amended

Complaint, concluding that the Children’s claims were

expressly preempted by COPPA, 15 U.S.C. § 6502(d). The

Children filed a Third Amended Complaint, adding

additional details about the allegedly deceptive conduct.

The court again held that the “core allegations” in that

complaint were “squarely covered, and preempted, by

COPPA.” Regarding the deceptive conduct amendments,

the court held that the Children had again “failed to allege

deception beyond what is regulated by COPPA.” The court

granted the Children leave to file another amended

complaint “if they can substitute proper plaintiffs to

represent persons in the 13-16 age range”—i.e., older than

COPPA’s cutoff at 13 years old. The Children informed the

district court that they did not intend to further amend and

filed this appeal instead.

ANALYSIS

Under COPPA and its regulations, companies that

operate websites and online services marketed toward

children must provide certain disclosures about their data

10 JONES V. GOOGLE, LLC

collection activities and must safeguard the confidentiality,

security, and integrity of the children’s personal online

information. 15 U.S.C. § 6501–06; 16 C.F.R. §§ 312.1–13.

COPPA does not authorize a private right of action. Rather,

the statute confers enforcement authority on the FTC, 15

U.S.C. § 6505(a), and on state attorneys general, who must

notify the FTC and cooperate with it to bring civil actions as

parens patriae, id. § 6504(a). Several other specified

agencies retain enforcement authority over the entities that

they oversee. Id. § 6505(b).

This appeal presents the question whether COPPA

preempts state law claims based on underlying conduct that

also violates COPPA’s regulations. Preemption derives

from the Supremacy Clause, which “invalidates state laws

that interfere with, or are contrary to federal law.”

Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S.

707, 712–13 (1985) (quotation and citation omitted). The

Supreme Court has identified “three different types of

preemption”—express, conflict, and field. Murphy v.

NCAA, 138 S. Ct. 1461, 1480 (2018). The district court

based its dismissal on express preemption; Google and the

Channel Owners argue in the alternative that the claims are

conflict-preempted. Field preemption was not argued by any

party and so we do not reach that question here. We review

de novo the district court’s dismissal of the complaint on

preemption grounds. Metrophones Telecomms., Inc. v.

Glob. Crossing Telecomms., Inc., 423 F.3d 1056, 1063 (9th

Cir. 2005), aff’d, 550 U.S. 45 (2007).

I. Express Preemption

The “clear statement” rule provides that “Congress may

expressly preempt state law by enacting a clear statement to

that effect.” In re Volkswagen “Clean Diesel” Mktg., Sales

JONES V. GOOGLE, LLC 11

Pracs., & Prod. Liab. Litig., 959 F.3d 1201, 1211 (9th Cir.

2020), cert. denied sub nom. Volkswagen Grp. of Am. v.

Env’t Prot. Comm’n, 142 S. Ct. 521 (2021). Express

preemption is a question of statutory construction, requiring

a court to look to the plain wording of the statute and

surrounding statutory framework to determine whether

Congress intended to preempt state law. Id.; Nat’l R.R.

Passenger Corp. v. Su, 41 F.4th 1147, 1152–53 (9th Cir.

2022). Of course, congressional purpose “is the ultimate

touchstone in every pre-emption case,” Altria Grp. v. Good,

555 U.S. 70, 76 (2008) (quotation and citation omitted), but

the plain wording of the express preemption clause

“necessarily contains the best evidence of Congress’[s] pre-

emptive intent,” Puerto Rico v. Franklin Calif. Tax-Free Tr.,

579 U.S. 115, 125 (2016) (citation omitted). 1

COPPA’s preemption clause provides:

No State or local government may impose

any liability for commercial activities or

actions by operators in interstate or foreign

commerce 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.

15 U.S.C. § 6502(d) (emphasis added).

Although the word “treatment” appears unique to

COPPA’s preemption clause, we note the similarity between

this provision and other preemption clauses barring

“inconsistent” state laws. Our decisions in Metrophones,

1

We assume without deciding that the presumption against preemption

does not apply.

12 JONES V. GOOGLE, LLC

Ishikawa, and Beffa each involved clauses preempting state

laws “inconsistent” with federal statutes or regulations.

Metrophones, 423 F.3d at 1072 (statute preempted “State

requirements that are inconsistent with the Commission’s

regulations” (quoting 47 U.S.C. § 276(c))); Ishikawa v. Delta

Airlines, 343 F.3d 1129, 1132 (9th Cir.), amended on denial

of reh’g, 350 F.3d 915 (9th Cir. 2003) (statute preempted any

“law, regulation, standard, or order that is inconsistent with

regulations prescribed under this chapter” (quoting 49 U.S.C.

§ 45106(a))); Beffa v. Bank of the West, 152 F.3d 1174, 1177

(9th Cir. 1998) (statute preempted “any provision of the law

of any State . . . inconsistent with this chapter” or such

regulations (quoting 12 U.S.C. § 4007(b))).

In each of these cases, we have read the statutory term

“inconsistent” in the preemption context to refer to

contradictory state law requirements, or to requirements that

stand as obstacles to federal objectives. We do not see that

Congress’s use of the phrase—“inconsistent with the

treatment of those activities or actions”—distinguishes this

case by changing the scope of the preemption clause. In

these prior cases, where state law was not inconsistent with

the methods of regulating, or treatment of, activities under

the federal statute, we found express preemption

inapplicable. See Metrophones, 423 F.3d at 1073 (court

must ask “whether state law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress” (quotations and citation omitted));

Beffa, 152 F.3d at 1177 (statute did not preempt state law

negligence causes of action “that supplement, rather than

contradict” federal regulations); Ishikawa, 343 F.3d at 1132

(“[W]e cannot see how the duty the state common law

imposed . . . could be inconsistent with the federal

guidelines, which require the same thing with more

JONES V. GOOGLE, LLC 13

specificity.”). In each case, we held that the preemption

clauses did not bar state tort or contract laws imposing

obligations similar or identical to the substantive federal

requirements. In short, state laws that “supplement,” 152

F.3d at 1177, or “require the same thing,” 343 F.3d at 1132,

as federal law, do not “stand[] as an obstacle,” 423 F.3d at

1073, to Congress’s objectives, and so are not

“inconsistent.”

By contrast, Google’s construction would effectively

read the word “inconsistent” out of COPPA’s preemption

provision. Under Google’s reading, COPPA would preempt

all state law claims protecting children’s online privacy.

Such an interpretation ignores Congress’s distinction

between “inconsistent” and “consistent” state laws and

contravenes the command that courts “must give effect, if

possible, to every clause and word of a statute.” Loughrin v.

United States, 573 U.S. 351, 358 (2014).

Given this context, we are not persuaded that the

insertion of “treatment” in the preemption clause here

evinces clear congressional intent to create an exclusive

remedial scheme for enforcement of COPPA requirements.

Since the bar on “inconsistent” state laws implicitly

preserves “consistent” state substantive laws, it would be

nonsensical to assume Congress intended to simultaneously

preclude all state remedies for violations of those laws. This

assumption is particularly unpersuasive here where

Congress has “legislated . . . in a field which the States have

traditionally occupied,” Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947). If Congress intended to alter this

longstanding state regulatory scheme, we would expect it to

have done so explicitly. See Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not . .

. hide elephants in mouseholes.”). It is logical to conclude

14 JONES V. GOOGLE, LLC

that if exercising state-law remedies does not stand as an

obstacle to COPPA in purpose or effect, then those remedies

are treatments consistent with COPPA. Cf. Arellano v. Clark

Cnty. Collection Serv., LLC, 875 F.3d 1213, 1218 (9th Cir.

2017) (holding the Federal Debt Collection Practices Act

preempted state debt execution mechanisms because those

mechanisms would enable debt collectors to “evade the

restrictions of the Act” and thus “thwart enforcement of the

[Act] and undermine its purpose”).

Our reasoning comports with the long line of cases

holding that a state law damages remedy for conduct already

proscribed by federal regulations is not preempted. Cf. Bates

v. Dow Agrosciences LLC, 544 U.S. 431, 448 (2005) (“To be

sure, the threat of a damages remedy will give manufacturers

an additional cause to comply, but the requirements imposed

on them under state and federal law do not differ.”);

Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996) (“Nothing

in [21 U.S.C.] § 360k denies Florida the right to provide a

traditional damages remedy for violations of common-law

duties when those duties parallel federal requirements.”);

Wigod v. Wells Fargo Bank, 673 F.3d 547, 581 (7th Cir.

2012) (“The absence of a private right of action from a

federal statute provides no reason to dismiss a claim under a

state law just because it refers to or incorporates some

element of the federal law.”).

Because the Federal Trade Commission is the principal

enforcer of COPPA, we asked the agency for its views on

preemption. In its amicus brief, the FTC wrote that “[t]he

parties dispute only whether express or conflict preemption

principles bar plaintiffs’ state law claims.” The panel

concluded that neither form of preemption applies and, on

this record, the FTC agrees. The FTC went on to note that

“[t]he panel correctly determined that state law claims like

JONES V. GOOGLE, LLC 15

those here, which are brought as fully stand-alone causes of

action under state law . . . but involve conduct that also

violates COPPA, are generally consistent with COPPA and

not preempted. Congress did not intend to wholly foreclose

state protection of children’s online privacy, and the panel

properly rejected an interpretation of COPPA that would

achieve that outcome.” And, the FTC concluded, “[t]he

panel properly rejected Google’s interpretation, which

would have the extreme effect of providing immunity from

a wide swath of traditional state law claims that were never

discussed in COPPA’s legislative history, much less swept

aside altogether.”

We hold that COPPA’s preemption clause does not bar

state-law causes of action that are parallel to, or proscribe the

same conduct forbidden by, COPPA. Express preemption

therefore does not apply to the Children’s claims.

II. Conflict Preemption

Even if express preemption is not applicable, “[p]re-

emptive intent may also be inferred” through conflict

preemption principles, Altria, 555 U.S. at 76–77, that is,

“when state law conflicts with a federal statute,” Ass’n des

Éleveurs de Canards et d’Oies du Québec v. Bonta, 33 F.4th

1107, 1114 (9th Cir. 2022). There are two types of conflict

preemption: (1) “‘conflicts’ that prevent or frustrate the

accomplishment of a federal objective,” and (2) “‘conflicts’

that make it impossible for private parties to comply with

both state and federal law.” Geier v. Am. Honda Motor Co.,

529 U.S. 861, 873 (2000). Only the first type, which turns

on Congress’s “objective” in enacting COPPA, is at issue

here.

Although express and conflict preemption are

analytically distinct inquiries, they effectively collapse into

16 JONES V. GOOGLE, LLC

one when the preemption clause uses the term

“inconsistent.” Metrophones, 423 F.3d at 1073. Under

either approach, the question is “whether ‘state law stands as

an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress’” or the regulatory

agency with rulemaking authority. Id. (quoting Gade v.

Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).

For the same reasons that we conclude there is no express

preemption, we conclude that conflict preemption does not

bar the Children’s claims. We reverse the district court’s

dismissal of the third amended complaint on preemption

grounds. We remand so that the district court can consider

in the first instance the alternative arguments for dismissal,

to the extent those arguments were properly preserved.

REVERSED AND REMANDED.