Cert. Sought in Yahoo Email Spying Class Action Lawsuit

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A consolidated email spying class action lawsuit has been filed against Yahoo Inc. in California federal court, alleging the web company illegally scanned users’ and non-users’ emails to tailor advertisements to non-subscribers. The four named plaintiffs of this Yahoo class action lawsuit seek to represent every non-subscribing consumer who received an email from any of the 75 million Yahoo Mail subscribers since October 2011.

Last week, plaintiffs Cody Baker, Brian Pincus, Rebecca Abrams, and Halima Nobles asked the court for Class certification, claiming that although they do not have a Yahoo email account, they do correspond electronically with users of Yahoo Mail. The Yahoo email spying class action lawsuit alleges Yahoo intercepts their email messages before it is delivered, at which point the message is scanned and analyzed for content that is then shared with third party companies.

The plaintiffs of the consolidated email spying class action lawsuit argue that as non-subscribers they did not give Yahoo their express consent to have their emails intercepted and read. As a result, this Yahoo email spying class action lawsuit seeks injunctive relief for plaintiffs under the California Invasion of Privacy Act (CIPA) and the Stored Communications Act (SCA).

According to the Yahoo class action lawsuit:

“Plaintiffs seek a declaration that Yahoo’s conduct violates the CIPA and the SCA, as well as injunctive relief that requires Yahoo to cease scanning the emails of non-Yahoo Mail subscribers without their consent, permanently delete all data it has collected and stored from non-subscribers’ email without their consent, and identify all individuals and entities with which it has shared or sold information or data it collected from non-subscribers’ emails.”

In suspecting that they will run up against objections by the web company, the plaintiffs of the Yahoo email spying class action lawsuit have argued that Class certification for the litigation is appropriate because the plaintiffs and the potential Class Members are not seeking monetary relief and because of the numerosity of the proposed Yahoo email spying Class of non-subscribers who use email services other than Yahoo, yet communicate with Yahoo users.

The Yahoo email spying class action lawsuit further claims that Class certification should include Class Members from all 50 states under the CIPA claim, because the federal court has been directed to apply choice-of-law principles to this case. The plaintiffs further argue inclusion of Class Members outside of California state is appropriate because Yahoo is based in California and a choice-of-law provision is included in Yahoo’s Term of Service contracts will all subscribers.

The email spying class action lawsuit claims, “Although class members are not parties to the Terms of Service, the provision shows that Yahoo is prepared to litigate claims relating to its email services, including its scanning and analysis of the content of incoming and outgoing email, under California law,” the plaintiffs allege.

Finally, the plaintiffs have pushed back against Yahoo’s argument that the Class cannot seek injunctive relief because they became aware of Yahoo’s email spying practices and could avoid emailing accounts of Yahoo users. According to the Yahoo class action lawsuit, the plaintiffs claim that this is an unrealistic expectation by the web company for many reasons, but especially because it does not prevent Yahoo email subscribers from emailing the plaintiffs and other non-subscribers.

The plaintiffs are represented by Daniel C. Girard and Matthew B. George of Girard Gibbs LLP and Laurence D. King, Frederic S. Fox and David A. Straite of Kaplan Fox & Kilsheimer LLP.

The consolidated Yahoo Email Spying Class Action Lawsuit is In re: Yahoo Mail Litigation, Case No. 5:13-cv-04980, in the U.S. District Court for the Northern District of California.

UPDATE: On Jan. 7, 2016, plaintiffs asked a judge to grant preliminary approval to a proposed class action settlement that requires Yahoo to make several changes to its website and email servers.