Roley v. Google LLC
| Citation | 40 F.4th 903 |
| Decision Date | 14 July 2022 |
| Docket Number | s. 21-15677,21-15830 |
| Parties | Andrew ROLEY, Plaintiff-Appellant/Cross-Appellee, v. GOOGLE LLC, Defendant-Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Christian Schreiber (argued) and Monique Olivier, Olivier Schreiber & Chao LLP, San Francisco, California; Robert K. Shelquist and Rebecca Peterson, Lockridge Grindal Nauen PLLP, Minneapolis, Minnesota; Vildan A. Teske, Teske Katz, PLLP, Minneapolis, Minnesota; for Plaintiff-Appellant/Cross-Appellee.
Whitty Somvichian (argued), Michael G. Rhodes, Cameron J. Clark, and Julie M. Veroff, San Francisco, California; Courtney E. Gladstone, Cooley LLP, Boston, Massachusetts; for Defendant-Appellee/Cross-Appellant.
Before: Eugene E. Siler,* A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.
Defendant Google LLC sent users an email promising that they could unlock cool benefits like one terabyte of Google Drive storage by joining the company's Local Guides program and contributing content to Google Maps. Plaintiff Andrew Roley alleges, for himself and on behalf of a class, that the email constituted an offer for one terabyte of Google Drive storage under California contract law. "[A]dvertisements have been held to constitute offers where they invite the performance of a specific act without further communication and leave nothing for negotiation." Sateriale v. R.J. Reynolds Tobacco Co. , 697 F.3d 777, 788 (9th Cir. 2012) (quoting Donovan v. RRL Corp. , 26 Cal.4th 261, 109 Cal.Rptr.2d 807, 27 P.3d 702, 710 (2001) ). Here, the email, along with related documents constituting the purported offer, said nothing about how much content users had to contribute to Google Maps in order to unlock the Google Drive benefit. The district court rejected Roley's contention that the email constituted an offer for a terabyte of Google Drive storage and granted summary judgment to Google on Roley's breach of contract claim. We affirm.
Google sent an email (the "Photo Impact Email") to users who had contributed photos to Google Maps, but not yet joined the company's Local Guides Program. After congratulating users for their past contributions, the email invited them to join the program:
The email directed users to a sign-up page (the "Enrollment Page") where they could join the Local Guides program. The Enrollment Page required users to agree to the Local Guides Program Terms and Conditions ("Program Rules") before joining the program. It also hyperlinked to the Program Rules.
The Program Rules set out the terms and conditions of the Local Guides program. They stated that, by signing up for the program, users "agree[d] to be bound" by Google's Terms of Service and the Program Rules and advised users to "read each of these two documents, as together they form a binding agreement between you and Google."
The Program Rules informed users that, "[a]s a Local Guide, you will be placed into a level based on ... how much local content you contribute to Google, including how many High Quality reviews you've written." They explained that "[e]ach level may give access to different benefits," and advised users to visit "our benefits page" to learn about current benefits. They also said that "[a] review is considered ‘High Quality’ when it adheres to the guidelines described in our help center or as otherwise provided by Google." They further explained that level requirements and benefits were subject to change, "at Google's sole discretion."
The Program Rules included several hyperlinks to the Local Guides benefits page ("Benefits Page"). They also included a hyperlink to a Local Guides Help Center page describing the guidelines used to identify High Quality reviews. Some versions of the Program Rules also included a hyperlink to the main page of the Help Center.
The Benefits Page described the number of points needed to achieve each level, the benefits unlocked at each level, and the ways Local Guides could earn points. It stated that Level 4 required "200+ Points" and unlocked three benefits, including "Upgrade your Google Drive storage free."
The Local Guides Help Center was a series of webpages providing information about the program. Two Help Center pages stated that the Google Drive benefit was valid for two years. According to one, "If you become a Local Guide Level 4+, you can receive 1 TB of free Google Drive storage for two years." The other said that a Local Guide could "Receive 1 TB of free Google Drive storage for two years" by reaching "Level 4" and acquiring "200+ points."
After receiving a version of the Photo Impact Email, Roley joined the Local Guides program, achieved Level 4 status, and claimed his Google Drive benefit. He received an email from Google advising him that "[t]his upgrade is active for 2 years at 1 TB of additional storage." Roley contends that this was the first he learned of the two-year time limitation on the Google Drive benefit. He contends that, when he read the Photo Impact Email, he assumed Google was offering a lifetime benefit. He also points out that neither the Photo Impact Email, the Enrollment Page, the Program Rules, nor the Benefits Page disclosed the two-year limitation. He acknowledges that Google mentioned the two-year limitation on the two Help Center pages discussed above and in various social media postings, but denies that he ever reviewed those materials.
Roley filed a class action complaint on behalf of himself and approximately 8,000 other Google users who received the Photo Impact Email, joined the Local Guides program, and redeemed the Google Drive benefit. He asserted claims for breach of contract and conversion, alleging that "Google promised Plaintiff and Class members a free terabyte of data storage if they achieved ‘Level 4’ status as a Local Guide," that "Plaintiff and Class members accepted the terms of the contract through performance," and that "Google breached the contract by rescinding its provision of a free terabyte of data storage after Level 4 Guides had performed the work that Google required of them." He alleged that he and other class members had reasonably and justifiably understood the Photo Impact Email as an "offer by Google of a ‘free terabyte’ of data storage [for] an indefinite amount of time."
The district court certified a class, defined as "All residents of the United States who received the Photo Impact Email and attained Level 4 status as a Google Local Guide after November 12, 2015, and redeemed the benefit of 1 TB of Google Drive storage." Google then moved for summary judgment. Google challenged Roley's contention that the Photo Impact Email constituted an offer for one terabyte of Google Drive storage for life. The company pointed out that the email used conditional language, said nothing about a lifetime benefit, and failed to specify the performance required of Local Guides to qualify for the benefit—earning 200 points and achieving Level 4 status. In his opposition, Roley argued that "the photo impact email was plainly an offer," that Google had "offered 1 TB of free Drive storage in exchange for achieving Level 4 Local Guide status," that the email's failure to disclose the performance required to qualify for the benefit was "inconsequential," and that the lifetime nature of the benefit was implicit in the offer.
At the hearing on Google's summary judgment motion, the district court asked Roley to identify the specific documents that he believed constituted the offer. Roley initially identified five documents—the Photo Impact Email, the Enrollment Page, the Program Rules, the Benefits Page, and Google's Terms of Service. Ultimately, however, Roley advised the court that it could "ignore" the Terms of Service, and agreed with the court's suggestion that "the Benefits Page doesn't need to be considered part of the offer." Accordingly, in ruling on the summary judgment motion, the district court considered whether three documents—the Photo Impact Email, the Enrollment Page, and the Program Rules—constituted a unilateral contract offer for one terabyte of free Google Drive storage for life. Roley v. Google LLC , No. 18-CV-07537-BLF, 2021 WL 1091917, at *3–7 (N.D. Cal. Mar. 22, 2021).
The district court granted Google's summary judgment motion, ruling:
As a matter of law, the Photo Impact Email, Enrollment Page, and [Program Rules] cannot constitute the "clear and positive terms" communicating the specific act Mr. Roley needed to perform to accept the contract. The Photo Impact Email, Enrollment Page, and [Program Rules] never state that Mr. Roley must achieve Level 4 Local Guide status to receive the 1 TB Benefit, and none of the documents state[s] the 1 TB Benefit lasts indefinitely.
Id. at *6. Accordingly, the court held that "no unilateral contract exists." Id. The court also granted summary judgment to Google on Roley's conversion claim, noting that "[b]oth parties agree that the conversion claim is derivative of the breach of contract claim." Id. at *7. Roley timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. "We review a district court's grant of summary judgment de novo. " Feldman v. Allstate Ins. Co. , 322 F.3d 660, 665 (9th Cir. 2003).
Roley contends that the district court erred by granting summary judgment to Google on his breach of contract claim. We disagree.
Contracts may be bilateral or unilateral. "A bilateral contract consists of mutual promises made in exchange...
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