Advertising Law Blog

In Re: Google Inc. Gmail Litigation, decided on March 18, 2014 in the Northern District of California, represents a huge legal victory for the search engine. Google had been named in seven different class-action lawsuits for allegedly scanning e-mails sent by Gmail users and gleaning keyword information from the scans that was used for targeted marketing purposes. The suits claimed various federal and state statutes were violated by Google’s review of e-mails sent through the Gmail service it provides for free. The seven class actions were consolidated in the Northern District of California, and a motion for class certification was filed.

This week, District Judge Lucy Koh denied the class certification motion, which means each Gmail user will have to file their own lawsuit if he or she wishes to recover anything from Google. “Consent must be litigated on an individual, rather than classwide basis,” reasoned Judge Koh. She based her decision on the fact that class members saw a variety of different disclosures, privacy policies and even media reports relating to how Google scanned Gmail users’ accounts. Disclosures and privacy policies changed over time and, Gmail was made available through higher education institutions that often maintained their own terms and policies. The Court determined that some Gmail users may have explicitly consented to have their e-mails scanned, others may have given implied consent and some may not have consented at all, but the determination could not be made on a classwide basis: “In sum, the Court finds that a fact-finder would have to determine to what disclosures each Class member was exposed and whether such disclosures were sufficient to conclude . . . that Class members consented to the alleged Google interceptions of email. This factual inquiry is an intensely individualized one. […] The individualized questions with respect to consent, which will likely be Google’s principal affirmative defense, are likely to overwhelm any common issues. Therefore, the Court cannot conclude that Plaintiffs have met their burden of demonstrating that the proposed Classes satisfy the predominance requirement.”