(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

June 4 (Reuters) - Class actions rarely go to trial,

which is why a case against Google is proving to be an outlier.

The tech giant is defending itself before a jury in Santa Clara

County, California, superior court in an $800 million lawsuit by

Android smartphone users who say Google misappropriates their

cellphone data.

A jury of eight women and four men was seated on Tuesday in

what lawyers say is expected to be a three-to-four-week trial,

with opening statements kicking off on Wednesday.

The stakes are high, but the class, which includes an

estimated 14 million Californians whose mobile devices use

Google's Android operating system, is in some ways just an

appetizer. The same plaintiffs lawyers from Korein Tillery;

Bartlit Beck and McManis Faulkner are litigating a parallel case

in San Jose federal court covering Android users in the other 49

states, with billions of dollars in alleged damages.

The plaintiffs in court papers say that even when their

phones are turned off, Google causes Android devices to

surreptitiously send information over cellular networks "for

Google's own purposes," including targeted digital advertising.

These transfers improperly eat up data that users purchase from

their mobile carriers, the plaintiffs allege.

Google spokesperson José Castañeda said the claims

"mischaracterize standard industry practices that help protect

users and make phones more reliable," he told me. "We look

forward to making our case in court."

A unit of Mountain View, California-based Alphabet, Google

has a well-used playbook for settling class actions.

Earlier this week, for example, the company agreed to pay

$500 million to resolve shareholder litigation - a move that

comes on the heels of a $50 million deal in May to resolve

class-wide allegations of racial bias against Black employees

and a $100 million payout in March to a proposed class of

advertisers who claimed they were overcharged for clicks on ads.

So why is Google taking this case to trial?

In court papers, Google's outside counsel from Cooley argue

that Android users incurred no actual losses, and that consumers

consented to Google's so-called "passive" data transfers via

terms of service agreements and device settings. The lawyers

also dispute the fundamental premise of the case: that cellular

data allowances can be considered "property" under California

law and subject to conversion, a civil cause of action that

involves taking a person's property without permission.

When the "rhetoric and hyperbole are set aside, Plaintiffs'

theory is revealed as little more than a (misguided) product

design claim - not wrongful conversion," defense counsel wrote.

The Cooley team, which includes Whitty Somvichian, Michael

Attanasio, Max Bernstein and Carrie Lebel, declined comment.

The plaintiffs sued Google in Santa Clara County Superior

Court in 2019, asserting that they have a property interest in

their cellular plans' data allowances, and that each quantum

they pay for has a market value.

They don't object to data transmissions when they're

actively engaged with Google's apps and properties, like

checking email or playing a game. But they say Google never told

them it would avail itself of their cellular data when they

weren't using their phones to send and receive a range of

information on their usage.

"The upshot is that these phone users unknowingly subsidize

the same Google advertising business that earns over $200

billion a year," plaintiffs lawyer George Zelcs of Korein

Tillery said via email.

In addition to injunctive relief, the plaintiffs want Google

to reimburse them for the value of the cellular data the company

consumed. Per person, the amount is modest - 1 to 1.5 megabytes

of data each day, the plaintiffs estimate. To put that in

context, Americans used just over 100 trillion megabytes of

wireless data in 2023, my Reuters colleagues reported.

But with a class period dating back to 2016, the totals add

up quickly. In court papers, Google lawyers sound almost

incredulous at the amount of the claimed nationwide damages,

which they say runs in the tens of billions - more than the $7.4

billion Perdue Pharma settlement for the opioid crisis, they

note. "Plaintiffs cannot show remotely commensurate harm to the

class," they wrote.

In denying Google's motion for summary judgment in May,

Judge Charles Adams allowed the plaintiffs' claim for conversion

to go forward, ruling there are triable issues of material fact

for jurors to decide.

While Adams said no direct state law precedent exists as to

whether cell phone data is property, he pointed to a decision by

the 9th U.S. Circuit Court of Appeals last year in the parallel

federal class action, Taylor v Google.

In that case, U.S. Magistrate Judge Virginia DeMarchi in San

Jose sided with Google and dismissed the complaint with

prejudice in 2022, only to be reversed and remanded on appeal.

The appellate panel in an unpublished decision ruled that

the plaintiffs plausibly alleged they incurred damages when

Google used their cellular data.

Adams in a pre-trial order set some limits on what the

lawyers will be allowed to argue to the jury.

Plaintiffs may not suggest Google engages in "surveillance"

of Android users, he wrote, or that the data transfers are a

privacy violation.

As for Google, Adams said, it "must not present evidence or

argument suggesting that this case is 'lawyer driven' or was

'invented' by Plaintiffs' counsel."