Gmail Privacy Class Action Lawsuit Denied Certification

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Ironically, the media uproar regarding Google’s Gmail scanning policies that helped it to target advertising to users played a major role in the decision by U.S. District Court Judge Lucy Koh to deny Class certification and dismiss all claims with prejudice.

While the complaints may have satisfied other prongs of the Rule 23 standard for pleading the necessity of a class action lawsuit, Judge Koh found that Google adequately argued that the claims of the seven classes would fail on the basis of predominance, or the idea that the same legal questions existed among all users, whether they used Gmail or Google Apps or interacted with one of those users.

Judge Koh used the “education” class as an example of how the issue of express consent could fail. Many colleges and universities contracted with Google to use a branded version of the company’s Gmail service for students and employees. However, their disclosures regarding the tracking software the search giant would use varied significantly. Some offered inaccurate information regarding the company’s Gmail scanning data collection policies, while others linked to relatively clear information regarding the reading of emails.

For the other classes, Koh relied heavily on the legal issue of implied consent. For Gmail account holders and those who used other services, the information regarding Gmail scanning policies could not be restricted solely to the terms of the policies by Google, she wrote in the decision denying class certification. That is not to say that some users may have been aware of the actual practices, however.

Rather, “with respect to the consent under the Wiretap Act, [it] requires the fact-finder to consider all the surrounding circumstances to determine whether an individual knew that her communications would be intercepted,” Judge Koh wrote. In that case, the disclosures and news articles written by media outlets (who had sought to unseal some of the records regarding the case and been denied) would need to be considered for each potential member of a class.

Such a “fact-intensive inquiry … will lead to numerous” questions that “will overwhelm any common questions” that the various sub-classes may share. Since Google had been fighting Class certification in some of the consolidated class action lawsuits regarding Gmail privacy concerns since 2011, the combined complaint for all of the sub-classes was dismissed with prejudice as the class action attorneys for the plaintiffs had made three separate attempts, wrote Judge Koh.

The decision comes as a significant reversal compared to earlier decisions in the multidistrict litigation. Koh had earlier denied Google’s attempt to dismiss the class action lawsuits based on a reading of the Electronic Communications Privacy Act that would not allow data collection as part of the “ordinary course of business” when it contravened company policy. She also refused to allow an appeal to the Ninth Circuit regarding the same, noting that Google had the opportunity to raise that question at the appeals level several years ago.

The classes are represented by Sean F. Rommel of Wyly-Rommel PLLC, F. Jerome Tapley of Cory Watson Crowder & DeGaris PC and James Wagstaffe, Nancy L. Tompkins and Michael K. Ng of Kerr & Wagstaffe LLP.

The Gmail Privacy Class Action Lawsuits are In re: Google Inc. Gmail Litigation, MDL No. 2430, in the U.S. District Court for the Northern District of California.