Ninth Circuit Denies Defendants-Appellees’ Petition for Panel Rehearing or Rehearing En Banc

July 13, 2023 – The Ninth Circuit has denied the petition of Defendants-Appellees for panel rehearing or rehearing en banc of the Court’s December 28, 2022 published opinion reversing the district court’s dismissal of Hubbard v. Google et al., a proposed class action brought on behalf of minor children who viewed YouTube videos on certain YouTube “channels” geared towards children.

Plaintiffs allege that Google tracked children’s online behavior surreptitiously and without parental consent in order to show these children targeted behavioral advertising, in violation of their constitutional, statutory, and common law privacy rights. Plaintiffs have also named the owners of the YouTube channels at issue as Defendants, alleging that these channel owners knowingly profited from Google’s invasion of children’s privacy.

The December 2022 panel opinion overturned the district court’s order, determining that Congress only “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.”  Consistent with long-standing Ninth Circuit precedent, the panel held that state laws that “supplement” or “require the same thing” as a federal law do not “stand as an obstacle” to federal law and thus are not preempted.

In May, the Federal Trade Commission submitted an amicus brief in response to Defendants-Appellees’ petition that supported the panel’s reasoning, stating that, “The Commission agrees with the panel that plaintiffs’ claims are not preempted in this case. COPPA’s preemption clause preempts only state law claims that are ‘inconsistent’ with the statute’s treatment of regulated activities. The panel properly held that plaintiffs’ claims here were consistent with COPPA and therefore not displaced.”

The case, No. 5:19-cv-07016 (N.D. Cal.) has been remanded to the district court for further proceedings before Judge Beth Labson Freeman.  Pritzker Levine LLP and Silver Golub & Teitel LLP represent Plaintiffs in the action.

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