A lack of personal and specific jurisdiction has doomed Texas’ lawsuit against Google, which alleged violations of the state’s Deceptive Trade Practices Act, an appellate panel in Corpus Christi has determined.
In an 18-page ruling issued Thursday, Chief Justice Jaime Tijerina and Justices Clarissa Silva and Lionel Aron Peña Jr. held that the lawsuit — alleging Google violated state law when it made certain representations about how user location information and browsing history data is collected — cannot proceed in Texas courts.
“From our appraisal of the record before us, appellant’s activity in Texas compared with its nationwide and worldwide activity does not support a conclusion that appellant has made Texas its home,” the panel wrote. “Appellee’s allegations are insufficient to meet its initial burden. Moreover, without more, these allegations effectively negate the trial court’s general jurisdiction. Appellant cannot be ‘essentially at home’ in every foreign jurisdiction where it operates.”
Victoria County District Judge Eli E. Garza “should have granted [Google’s] special appearance on general jurisdiction grounds,” the panel held.
Texas filed suit against Google on Jan. 24, 2022, alleging it became “one of the richest companies in the world, in part, by deceiving Texans and profiting off their confusion.”
“Specifically, Google has systematically misled, deceived, and withheld material facts from users in Texas about how their location is tracked and used and how to stop Google from monetizing their movements,” the 44-page lawsuit alleged. “More to the point, while many Texans may reasonably believe they have disabled the tracking of their location, the reality is that Google has been hard at work behind the scenes logging their movements in a data store Google calls ‘Footprints.’ But while footprints generally fade, Google ensures that the location information it stores about Texans is not so easily erased.”
In a news release issued the same day the lawsuit was filed, Attorney General Ken Paxton touted it as “another part of my fight against Big Tech.”
“Google’s founding motto is ‘Don’t Be Evil.’ And yet it systematically lies to millions of consumers in order to stack billions of dollars into its coffers,” he said. “Big Tech companies like Google continue to erode the American way of life and often break the law to maintain their overwhelming dominant market position … I’ll hold Google accountable for misleading and deceiving Texans. This is not only an unethical invasion of privacy — it’s against the law.”
Judge Garza signed an order denying Google’s special appearance Feb. 22, 2023. The Thirteenth Court of Appeals panel heard oral arguments in the case Jan. 24, 2024.
In challenging the lawsuit, Google had argued that Texas courts cannot exercise general or specific jurisdiction over it. In support of that contention, Google explained that it isn’t “at home” in Texas, that of the 169,000 people it employs worldwide, only 5,500 are in Texas.
Texas had argued that because one of the tech giant’s four data centers is located in Texas and because Texas accounts for 8.9 percent of Google’s U.S. revenue and 4 percent of its worldwide revenue, general jurisdiction exists.
The panel wrote that Google isn’t incorporated in Texas, doesn’t maintain a principal place of business in the state and that “allegations that the defendant maintains in-state business alone does not suffice to subject a corporation to general jurisdiction.
“The small percentage of business that appellant performs in Texas as alleged by appellee does not even amount to substantial, continuous, and systematic contacts, but even if it does, the United States Supreme Court has disavowed that rubric as the proper measure of analyzing general jurisdiction,” the panel held. “Instead, general jurisdiction analysis “calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide.”
Texas’ argument that specific jurisdiction over Google exists did not fare better. Texas alleged various business contracts Google had with Texas made it “at home” in the state.
Google had argued its contacts with Texas weren’t substantial enough to amount to “purposeful availment” of the forum and that there was no substantial connection between its contacts with Texas “and the operative facts of the litigation.”
The panel held that Texas failed to “specifically plead allegations that the operative facts of the litigation are related to appellant’s contacts with Texas.”
“Nonetheless, the evidence shows that appellant’s alleged contacts with Texas were made by appellant’s employees who were not in Texas,” the opinion reads. “Appellee has not alleged that any of appellant’s Texas employees made the misleading statements. Thus, the evidence shows that appellant’s employees directed the alleged misleading statements from afar, which is insufficient to confer specific jurisdiction … Stated differently, appellee has not identified an ‘activity or occurrence . . . that takes place in’ Texas.”
Google is represented by Constance H. Pfeiffer, R. Paul Yetter, Bryce L. Callahan, Grant B. Martinez and Susanna R. Allen of Yetter Coleman, Jim Cole of Cole, Cole, Easley & Sciba, and Benedict Hur, Simona Agnolucci, Jonathan Patchen, Eduardo Santacana, Joshua Anderson and Harris Mateen of Willkie Farr & Gallagher.
Texas is represented by Brent Webster, Lanora C. Pettit and Justin W. Manchester of the attorney general’s office, Marc B. Collier, Julie N. Searle, Chris Cooke, Chase Sippel, Joseph M. Graham Jr., Barbara Light, Isabela Pena-Gonzalez, David Davis Jr., Zachery Newton, Lilly MacDonald and Gary Y. Gould of Norton Rose Fulbright, Ronald B. Walker of Walker Keeling and Kevin D. Cullen of Cullen, Carsner, Seerden & Cullen.
The case number is 13-23-00114-CV.