Google Privacy Class Action Lawsuit Consolidated into MDL

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Last week, a class action lawsuit accusing Google Inc. of scanning Gmail users’ email for targeted marketing purposes was linked by a federal judge to multidistrict litigation (MDL) that was formed over the same issue.

Lead plaintiff Daniel Matera alleges in a class action lawsuit filed earlier this month that Google tracks user data for the purpose of ad targeting though all sent and received Google emails. The plaintiff further alleges that even non-Gmail users’ messages are intercepted, cataloged and indefinitely stored by Google.

Matera also alleges that before Dec. 19, 2014, Google’s email terms of services and privacy did not mention this practice to users, therefore Google failed to legally obtain the consent of Gmail users. According to the Gmail privacy class action lawsuit, after Dec. 19, 2014, Google amended its policy to inform its users of their practice of collecting data for tailored advertising, but the plaintiff claims he and potential Class Members had no notice of this amendment, nor did they accept Google’s privacy policy.

Last week, U.S. District Judge Lucy Koh granted a motion to consolidate the Gmail privacy class action lawsuit in multidistrict litigation (In re: Google Inc. Gmail Litigation). This move was opposed by Google, which argued that the cases are not related because one seeks injunctive relief, while the other seeks damages. Judge Koh disagreed, finding that there would be an unduly burdensome duplication of labor and cost, and potentially conflicting results, if the cases are conducted in different courts.

The Google class action lawsuit had been pending before U.S. District Judge Beth Labson Freeman in San Jose, but Matera asked Judge Koh to look into whether the case is related to the MDL. The parties to the MDL dismissed the case after Judge Koh denied certification of the proposed Class.

Matera seeks to represent a class of non-Gmail users who say they never agreed to the company’s practice of scanning their communications for information that can be used to plant ads, and whose email privacy shouldn’t be invaded just because they’re connecting with users of Google’s mail service.

“Matera and In re Google concern substantially the same parties and events,” the judge wrote in her order, “and it appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different judges,” she continued.

Judge Koh denied with prejudice the MDL plaintiffs’ motion to certify four Classes on Wiretap Act violations and three Classes under state privacy laws in March of 2014. The MDL consisted of seven class action lawsuits from six different states that alleged Google scanned and analyzed content from Gmail accounts without obtaining consent from either the senders or the recipients.

Judge Koh refused to certify the Classes in the MDL, finding that the disclosures surrounding Google’s interception of communications raised a myriad of factual considerations crucial to evaluating each user’s implied consent that would require individualized determinations to resolve.

Matera is represented by Michael W. Sobol and Nicole D. Sugnet of Lieff Cabraser Heimann & Bernstein LLP, Hank Bates of Carney Bates & Pulliam PLLC, and Ray E. Gallo and Dominic R. Valerian of Gallo LLP.

The Google Privacy Class Action Lawsuit is Daniel Matera v. Google Inc., Case No. 5:15-cv-04062, in the U.S. District Court for the Northern District of California. The Gmail Scanning MDL is In re: Google Inc. Gmail Litigation, Case No. 5:13-md-02430, in the U.S. District Court for the Northern District of California.

UPDATE: On Feb. 5, 2016, a California federal judge approved Google’s motion to stay, and is in agreement with Google that the upcoming decision from the Spokeo Inc. v. Robins case is relevant to the current Google lawsuit. The Spokeo case will address the issue of whether a private citizen has the ability to sue under a federal privacy statute when there is no evidence of “concrete harm,” which is relevant to the Google lawsuit.

UPDATE 2: On Aug. 12, 2016, a California federal judge rejected Google’s bid to dismiss a proposed class action claiming the company violated federal and state privacy laws by checking user’s emails for advertising information.

UPDATE 3: On Sept. 23, 2016, a federal judge trimmed the class action’s claim for an injunction, however claims based on the Wiretap Act will remain.

UPDATE 4: On Dec. 13, 2016, a proposed Gmail class action settlement would provide users of Google’s email service with no damages but would preserve their right to bring their own claim later.

UPDATE 5: On July 21, 2017, Google reportedly reached a revised $2.2 million email scanning settlement after a California federal judge rejected the original proposed class action settlement earlier this year.