Rodriguez v. Google LLC 16 20-cv-04688-RS (N.D. Cal. Jan. 3, 2024) Google's position for purposes of this argument is a curious one. Throughout their Opposition to Plaintiffs' Motion, Google provides evidence that its disclosures to class members were decidedly unambiguous. See, e.g., Opp. at 6-9 (describing Google's Privacy Policy, and various disclosures to users about what data is collected and/or saved). In fact, Google insists that “for users who actually read the disclosures and engaged with the Ad Settings button, they would have understood that turning off the personalization setting would not prevent Google from serving ads, only make the ads less relevant” and, in order to disclose its notice and consent procedures as clearly as possible, Google “disclos[es] information over time rather than all at once.” Opp. at 9. Google bears the burden of proof of express consent, but the “non-speculative” evidence it has provided leans against individualized treatment because Google itself vehemently insists that its own disclosures are unambiguous. See Brown, 2023 WL 5029899 at *18. Google cannot argue that its disclosures were unambiguous where it suits it, and ambiguous where it does not. While it is possible that individual class members learned about the WAA feature from a panoply of sources, it is left unexplained why that necessarily means Google's explanations were inconsistent, warranting defeat of predominance. Google's representations about the WAA *16 feature, unambiguous and persistent by its own admission, outweigh these individual questions about where class members learned about the WAA feature. Google next argues that users impliedly consented because “most of the class was likely well aware that sWAA would not serve as an ad blocker because they turned sWAA off and Google kept serving them ads.” Opp. at 21 (emphasis in original). This argument supposedly weighs against Plaintiffs' position that the “sWAA button could never be unambiguous.” Id. Plaintiffs argue that “Google cites no evidence users know a Google ad when they see one,” and, regardless, “Google must prove class members consented to Google's saving and use of sWAA-off data, not Google advertising.” Reply at 14 (emphasis in original). Indeed, the relevant inquiry is whether class members consented to the collection of sWAA-off data. Google has maintained that the only data collected from sWAA-off users is required for their “record-keeping,” most of which is related to tracking their ad services. Therefore, Google argues that it can raise a defense of implied consent because users knew they were being served Google ads. Again, this defense may be raised class-wide. Google's ubiquitous representation to users is a common question, not an individual one, particularly as Google insists that “every member of the class who was served an ad by Google had the obvious and clear opportunity to understand that the ad was served by Google.” Opp. at 21. If its behavior was consistent across the class, then it may raise its defense class-wide, even if an additional concern may arise as to who actually clicked on the representations. That individual question, balanced against the many common ones, does not defeat predominance. In this respect, Google's policy is uniform, and common questions predominate. 17 While Google's third argument breaks in the opposite direction, it is not enough to defeat a finding of predominance. Google maintains that each class member had a way to prevent conversion attribution at the device-level. For example, Google points to Apple iOS's “opt-in” policy starting in April 2021, called App Tracking Transparency, which requires users “to opt-in to ad tracking affirmatively.” Opp. at 22. An analog for Android devices that allows users to optout of ad-tracking is called “Opt out of Ad Personalization.” Id. Google insists that predominance *17 is defeated because some of the proposed class members will have consented by opting-in to ad tracking affirmatively, and others will not. Plaintiffs insist that this technology is irrelevant to sWAA-off data. While Google has sufficiently pointed to the challenge of raising this defense class-wide, this issue still warrants class 10