Rodriguez v. Google LLC 20-cv-04688-RS (N.D. Cal. Jan. 3, 2024) users browse the internet.” Id. ¶ 135. Lasinski states that the panel participants knowingly allow Google to track their activity, thus “relinquish any sense of online data privacy.” Id. ¶ 139. The minimum recurring payment for a participant is $3 a month. To arrive at an actual damages calculation, Lasinski applied the $3 value once to each of the class member devices (i.e. a device where WAA/sWAA was turned off from July 1, 2016 to December 2022). Lasinski calculates actual damages to equal approximately $486.05 million. argument misses the mark. The Ninth Circuit has not limited disgorgement to CDAFA claims. The relevant inquiry under California law is whether there is “an entitlement to unjustly earned profits” and, “to establish standing, plaintiffs must only establish a stake in the profits garnered from their personal data and that it is unjust for the defendant to retain those profits.” Greenley v. Kochava, Inc., No. 22-cv-01327-BAS-AHG, 2023 WL 4833466 at *4 (S.D. Cal. July 27, 2023) (citation omitted). Plaintiffs, through Lasinski's opinion, have met this burden for Daubert purposes. Further, Plaintiffs must show that the damages model is “consistent with its theory of liability in the case.” Brown, 2023 WL 5029899 at *6 (quoting Comcast, 569 U.S. at 35). Here, Plaintiffs' theory is consistent to the extent that they contend Google was unjustly enriched by collection of their data. Lasinski's theory attributes damages to the wrongful conduct. III. Recoverable damages 21 To support its Daubert motion, Google asserts that (a) Plaintiffs cannot recover disgorgement on their claims, (b) the disgorgement model provides for a “full restitution model” based on unrealistic “hypothetical damages scenario” or fictitious facts, (c) the actual damages model has no methodology and is therefore unreliable because it is cribbed from another case, (d) the models used by Lasinski are “outcome determinative” and “cherry-picked” so should be rejected, and (e) the actual damages model does not account for variances among class members. *21 b. Lasinski's model is not based on fictitious scenarios a. Availability of disgorgement as a remedy Google argues that Plaintiffs did not suffer any actual loss, as Google never invaded any property right, so disgorgement is not available to Plaintiffs as a remedy. As already discussed above in the analysis for 23(b)(3), Google is incorrect at least with respect to the CDAFA claim. See Facebook Tracking, 956 F.3d at 600; see also Brown v. Google LLC, 2023 WL 5029899 at *6-7 (N.D. Cal. Aug. 7, 2023). With respect to the intrusion upon seclusion and invasion of privacy claims, Google argues that disgorgement is unavailable to Plaintiffs because “the primary damage . . . is the mental distress from having been exposed to public view.” Time, Inc. v. Hill, 385 U.S. 374 384 n.9 (1967) (as quoted in CACI 1820 (2023)). However, that 22 Google next argues that Lasinski's model for unjust enrichment suffers causation deficiencies because he assumes that all of Google's revenue from ads served to sWAA-off users was attributed to Google's capacity to keep a record the ad was served. Google objects to Lasinski's methods, which according to Google “presume 100% forfeiture” because Lasinski does not consider “(1) user reactions if Google had provided users with the disclosures Plaintiffs allege it should have provided; or (2) changes in behavior by Google or advertisers if Google could no *22 longer use the record-keeping data.” Daubert Mot. at 10-11. Google argues this analysis is “critical” because, if class members would not change their behavior based on Google's disclosures, or if advertisers would have placed just as many ads with Google in the absence of sWAA-off data, then Google could not have been unjustly enriched. However, Lasinski was not required to examine whether Google could have profited otherwise before 13