Google Defeats Class Certification in Gmail Privacy Case Because Enough Users Understand How It Works
After denying Google’s motion to dismiss, the plaintiffs sought to certify four separate classes and three subclasses for the state wiretapping statutes Google allegedly violated. The proposed classes consisted of users of a cable system that contracted with Google to provide Google App and email service, users at educational institutions that used Gmail, Gmail users between the age of 13 and the age of majority, and all non-Gmail users that have sent emails to Gmail users. In her order denying class certification, Judge Koh primarily relied on the issue of “implied consent,” which she held to be an “intensely factual question that requires consideration of the circumstances surrounding the interception to divine whether the party whose communication was intercepted was on notice that the communication would be intercepted.” For example, a Gmail user could have read one of the numerous news articles that explained that Google was able to offer Gmail for free by scanning the content of emails for keywords so that it could display relevant advertisements to the Gmail user, and thus the user may have impliedly consented to Google’s interception by continuing to use Gmail or sending emails to Gmail users. Based on the numerous methods by which individuals could impliedly consent to Google’s alleged interception of emails, Judge Koh ruled that she would be forced to conduct individualized inquiries that would “overwhelm any common questions,” thus making class certification inappropriate. In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK (N.D. Cal. Mar. 18, 2014).