Yesterday, the Northern District of California denied class certification in the challenge to Google’s practice of scanning emails to serve advertising, In re Google Inc. Gmail Litig., No. 13-MD-02430-LHK. Judge Koh had previously denied Google’s motion to dismiss, holding that Plaintiffs had adequately alleged Google did not obtain express consent or classwide implied consent to scanning content for advertising purposes from its users or from others that sent emails to Gmail users. That ruling proved to be a double edged sword. While it allowed Plaintiffs’ claims to continue, individualized issues related to consent proved fatal to their efforts to certify a class.
Plaintiffs sought to certify four classes and three subclasses. The classes included users of a cable system that contracted with Google to provide app and email service, users at educational institutions that used Gmail, Gmail users under age 13, and all non-Gmail users that have sent emails to Gmail users (with subclasses for users in California, Florida, and Maryland). The Court found that none of the proposed classes satisfied the predominance requirement. In doing so, Judge Koh recognized that “consent” is a central issue, and that “individual issues of consent are likely to predominate over any common issues, and that accordingly, class certification would be inappropriate.” Slip Op. at 26.
In denying certification, the Court relied on implied consent, which is 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.” Id. at 30. The Court found there were many ways that class members could have gained knowledge of Google’s practices, including from Google itself, news articles, and other sources. If class members had such knowledge and continued to send emails they may have impliedly consented to scanning by sending emails to Gmail users. The Court recognized that these issues could not be decided on a class basis because “Such inquiries—determining to what disclosures each Class member was privy and determining whether that specific combination of disclosures was sufficient to imply consent—will lead to numerous individualized inquiries that will overwhelm any common questions.” Id. at 34.