have

Definition

HOLDING AND REASONING: (Freeman, J.) (1) Yes. To assert claims based on invasion of privacy, a plaintiff must allege facts demonstrating a reasonable expectation of privacy concerning the intercepted communication. A person generally has a reasonable expectation of privacy concerning conversations in his own home, especially if the conversations are with family members. Here, to viably assert claims against Google based on invasion of privacy, the users needed to allege facts showing that they had a reasonable expectation of privacy in the oral communications that were unknowingly recorded. The users satisfied that burden. They have alleged facts showing that GAEDs regularly engage in unknowing recording and that the users frequently had conversations near their GAEDs in their homes. Google’s motion to dismiss is therefore denied as to the users’ claims based on invasion of privacy. (2) Yes. To assert a claim for violation of the UCL, a plaintiff must have suffered an economic injury. The UCL prohibits unlawful, unfair, or fraudulent business practices. A practice is considered unlawful if it violates another state, federal, or local law. It is less clear what renders a practice unfair. Some California courts apply a balancing test that weighs the utility of the business’s practice against the gravity of the harm to the injured party. Other courts require allegations of conduct that threatens to violate antitrust law or significantly harm market competition. Regardless of which test applies, a consumer can assert a claim for violation of the UCL only if the consumer has suffered an economic injury, meaning that the consumer lost money or property because of the business’s unlawful, unfair, or fraudulent practice. Here, if complaining users purchased GAEDs, then there is an argument that they suffered an economic injury because they paid a higher price for the devices than they would have paid if they knew Google was going to use unknowing recordings to target advertising and improve its own systems. However, if a user did not purchase a GAED, but instead bases his claim on recordings by a GAED that he received for free or that is owned by another, then the user has not suffered an economic injury and thus does not have a viable UCL claim. For those with standing to assert UCL claims, those claims cannot be dismissed on summary judgment, because there are questions of fact concerning whether Google’s practices threatened antitrust law and whether the utility of Google’s conduct outweighs the harm suffered by users. Google’s motion to dismiss is granted in part and denied in part regarding the UCL claim.