Google received a major win yesterday in the potentially massive Gmail “wiretapping” litigation. Class action status was denied to the litigation by US District Judge Lucy Koh.
Had the case been permitted to go forward as a unified class action, as Bloomberg points out, “the amount at stake could have reached into the trillions of dollars if, as the plaintiffs argued, each person was eligible for damages of $100 a day for violations of federal wiretap law.”
Earlier, Judge Koh had refused to dismiss the case. In the wake of yesterday’s ruling, however, plaintiffs must proceed individually against Google, which as a practical matter is an insurmountable barrier for the majority of those in the would-be class. Most individuals will not have the time, inclination or resources to sue Google.
I haven’t been able to review Judge Koh’s order. However, as reported by Bloomberg, the judge found “that the proposed classes of people in the Google case aren’t ‘sufficiently cohesive.’” The notion of ”cohesiveness” is legally specific in a class action context.
The part of the suit that was insufficiently cohesive — and this is the central issue in the litigation — is the plaintiffs’ consent to the practices that are being complained about (scanning of email, profiling). The issue of “consent” and the understanding of individual users, which the judge obviously regarded as subjective and variable, was not deemed appropriate for class action treatment.
All potential class members need to be essentially identically situated for a class action to be certified. Beyond this, many corporations are avoiding class actions, traditionally a tool of consumer protection and enforcement, by including class action waivers and mandatory arbitration clauses in terms of service and user agreements.
We can probably expect Google to modify its terms of service accordingly (if it hasn’t already).