U.S. District Judge James Donato of the Northern District of California. Photo: Jason Doiy/ALM

A federal judge in San Francisco has largely waved on a privacy lawsuit against a group of companies behind gaming apps aimed at children and their software partners.

Plaintiffs represented by counsel at Carney Bates & Pulliam and Lieff Cabraser Heimann & Bernstein filed a trio of lawsuits in 2017 raising allegations that Walt Disney Co., Kiloo A/S, Viacom Inc. and a group of their software partners had created gaming apps that were covertly used to collect behavioral data to deliver targeted advertising to kids in violations of various states' laws. The suits in question raise claims related to the mobile games “Subway Surfers,” “Princess Palace Pets,” “Llama Spit Spit,” and four separate versions of “Where's My Water?”

On Wednesday, U.S. District Judge James Donato of the Northern District of California largely denied a round of defense motions to dismiss in the cases finding that plaintiffs had sufficiently alleged that the defendants' actions constituted an intrusion upon seclusion under California law and raised possible claims under California's constitutional right to privacy.

In particular, Donato found that plaintiffs alleged that defendants surreptitiously gathered user-specific information; tracked individual users in real time; bought and sold the information in transactions with third-party companies; and that those actions resulted in minor game players being shown targeted ads and further tracking to see how users responded to the ads.

“Current privacy expectations are developing, to say the least, with respect to a key issue raised in these cases—whether the data subject owns and controls his or her personal information, and whether a commercial entity that secretly harvests it commits a highly offensive or egregious act” under California law, wrote Donato in his 22-page order. “The court cannot say that the answers are so patently obvious that plaintiffs' allegations are implausible or inadequate as a matter of law.”

Disney is represented in the litigation by Munger, Tolles & Olson, Kiloo by Durie Tangri, and Viacom by Covington & Burling. Neither defense counsel nor Lieff Cabraser's Michael Sobol immediately responded to messages seeking comment Thursday.