The Ninth Circuit recently held that the Children’s Online Privacy Protection Act, which gives the Federal Trade Commission  authority to regulate the online collection of personal information from children under the age of 13, does not preempt consistent state law, potentially increasing the risk of class action litigation based on alleged COPPA violations.  See Jones v. Google LLC, No. 21-16281, — F.4th —- (9th Cir. 2022).

COPPA’s preemption provision states that “No State or local government may impose any liability . . . in connection with an activity or action described in this chapter that is inconsistent with the treatment of those activities or actions under this section.”  15 U.S.C. § 6502(d).  Based on the FTC-focused remedial scheme and the lack of a private right of action, the district court held that COPPA “does not leave room for state laws to impose additional liability” and dismissed state law privacy, consumer protection, and unjust enrichment claims premised on violations of COPPA.  Hubbard v. Google LLC, 508 F. Supp. 3d 623, 630 (N.D. Cal. 2020); see also Hubbard v. Google LLC, 546 F. Supp. 3d 986 (N.D. Cal. 2021). 

The Ninth Circuit reversed.  Focusing on the preemption clause’s use of the word “inconsistent,” it explained that its precedents analyzing similar clauses bar only “contradictory state law requirements, or . . . requirements that stand as obstacles to federal objectives.”  It rejected the argument that the use of the word “treatment” in COPPA’s preemption clause indicated an exclusive remedial scheme.  As a result, the Ninth Circuit held that state law remedies for violations of state law overlapping with COPPA violations were not preempted in these circumstances.

The Ninth Circuit’s decision aligns with the Third Circuit’s decision in In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 292 (3d Cir. 2016), which also held that COPPA did not preempt consistent state law.  Defendants faced with state-law claims overlapping with COPPA violations should continue to assess whether asserted claims may be inconsistent with COPPA or whether plaintiffs have proved all elements of the independent state law claims (and not just a COPPA violation), which could provide grounds to distinguish these decisions.  See, e.g., H.K. through Farwell v. Google LLC, 595 F. Supp. 3d 702, 709-11 (C.D. Ill. 2022) (holding that COPPA preempts BIPA claims asserted by plaintiffs under age of 13 because BIPA and COPPA impose different substantive standards).