A court in the Northern District of California recently denied Google’s request to prevent more than 69,000 putative class members from opting out of a certified class in favor of pursuing individual arbitration of their claims against Google.  See In re Google Assistant Privacy Litig., 2025 WL 510435, at *1 (N.D. Cal. Feb. 14, 2025)

In December 2023, the court certified a class in a long-running privacy suit related to Google Assistant-enabled devices, and subsequently approved a class notice plan apprising class members of how to request exclusion from the class.  A plaintiffs’ firm, Labaton Keller Sucharow LLP, subsequently submitted a mass exclusion request on behalf of 69,507 individuals who instead wished to arbitrate their claims.

Google then filed a motion to reject Labaton’s mass exclusion request.  Google argued that attempts to exclude class members en masse or on a representative basis usurp each class member’s due process right to make an informed, individualized decision about whether to opt out of the class.  Google also claimed that the mass exclusion request should be rejected because it lacked individual signatures, as required for all exclusion requests under the long-form notice provided to the class.

The court denied Google’s motion and excluded the arbitration claimants from the class.  The court first held that the absent class members had “received precisely” the notice that due process requires regarding their right to opt out of a class, and that the arbitration claimants made an individualized decision to retain Labaton and pursue arbitration rather than remain in the class.  The court similarly determined that the exclusion requests were effective despite failing to comply with the signature requirement, holding that this “technical detail” was insufficient to defeat the individuals’ clear intent to exclude themselves from the class.

This decision illustrates one of the reasons it can be important to include a “blow-up” clause in a class-action settlement agreement that gives the defendant the right to terminate the agreement if the number of opt outs exceeds a certain threshold.  One of the principal reasons a defendant agrees to a class settlement is to guarantee global peace for the dispute, and although a settlement agreement cannot eliminate class members’ right to opt out, settlements are usually entered into with the expectation that the vast majority of class members will participate.  Recognizing this, most courts will enforce a provision under which the parties agree that the defendant can withdraw from the settlement if an agreed-upon threshold for opt-outs is exceeded.