Rodriguez v. Google LLC 20-cv-04688-RS (N.D. Cal. Jan. 3, 2024) Behrend, 569 U.S. 27, 34 (2013). Damage calculations need not be exact, but “at the classcertification stage (as at trial), any model supporting a ‘plaintiffs damages case must be consistent with its liability case.'” Id. at 35 (citation omitted). 14 class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.'” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453-54, (2016) (citation omitted). The parties' primary dispute as it relates to damages is whether they may be shown on a classwide basis, particularly with respect to Lasinski's expert opinion (discussed infra Section B). *14 Plaintiffs provide four models for monetary relief: “disgorgement, actual damages, punitive damages, and nominal damages.” Class Cert. Mot. at 19. Lasinski's models on disgorgement and actual damages are at issue in Google's Daubert motion and are discussed below, so first discussion turns to punitive and nominal damages. Plaintiffs seek punitive damages for all three claims to “punish and deter” Google based on its “conduct towards the class as a whole.” Class Cert. Mot. at 22 (citing Ellis v. Costco Corp. III, 285 F.R.D. 492, 542-44 (N.D. Cal. 2012)). Plaintiffs also seek nominal damages, relying on Opperman, 2016 WL 3844326 at *15-16. Google argues that Plaintiffs “would need to have shown that something about the data collection in question went beyond routine commercial behavior . . . and crossed into highly-offensiveand-harmful territory.” Opp. at 19. At this juncture, “it is sufficient to decide that the availability of punitive damages is amenable to classwide resolution,” through common evidence. Opperman, 2016 WL 3844326 at *17. e. Consent While Plaintiffs bear the burden of proving predominance under 23(b)(3), Google bears the burden of proof for the affirmative defense of consent. See True Health Chiropractic Inc. v McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018); see also Brown v. Google LLC, No.: 4:20cv-3664-YGR, 2023 WL 5029899 *17-18 (N.D.Cal. Aug. 7, 2023). “When ‘one or more of the central issues in the action are common to the i. sWAA disclosures 15 Google argues that even if harms and damages may be shown class-wide, its asserted defenses of express and implied consent as to its own disclosures raise individual questions that supersede common ones. First, Google suggests Plaintiffs theorize sWAA disclosures created confusion for class members “as to types of data it covered and which aspects of Google's business would be disabled by turning sWAA off” as necessarily raising individualized questions. *15 Opp. at 20. Specifically, Google reasons that whether sWAA really was ambiguous to Plaintiffs requires individualized evidence about a user's “experience with Google, their exposure to thirdparty app developers, and their own personal experiences with technology.” Opp. at 20. Plaintiffs object to this characterization of their claim, arguing that express consent does not defeat predominance because the “sWAA disclosures and Google's Privacy Policy” are the only relevant materials for analysis, and are “the same for all class members.” Reply at 10. By way of example, Google invokes In re Google, Inc. Gmail Litigation, No. 13-MD-02430-LHK, 2014 WL 1102660 (N.D. Cal. Mar. 18, 2014). In that case, the Court held that predominance was defeated because plaintiffs could learn about Google's disclosures from a “panoply of sources” including Google's own Terms of Service, privacy policies, news sources, with continued use of these various disclosures raising individual questions about implied consent. Id. at *17. 9