Judge Denies Class Action Status To Gmail “Wiretapping” Suit, Effectively Killing It

google-legal-lawGoogle 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).

Related Topics: Channel: Email Marketing | Google: Critics | Google: Gmail | Google: Legal


About The Author: is a Contributing Editor at Search Engine Land. He writes a personal blog Screenwerk, about SoLoMo issues and connecting the dots between online and offline. He also posts at Internet2Go, which is focused on the mobile Internet. Follow him @gsterling.

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  • Ordeith

    The class wasn’t made of Google customers, they were outside parties sending email to gmail users that Google was intercepting on their way to the gmail user’s mailbox. As such the parties that were part of the class were not subject to Google’s TOS and had no agreement with them. They could not sign their rights away in this case.

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