Google Email Scanning Suit on Hold until Spokeo Decision is Reached

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A California federal judge approved Google’s motion to stay, and is in agreement with Google that the upcoming decision from the current Spokeo Inc. v. Robins case is relevant to the current Google case.

The Spokeo lawsuit addresses claims of violations of the Fair Credit Reporting Act (FCRA), and the outcome of the Spokeo case will likely impact the Google suit, according to the judge.

U.S. District Judge Irene Koh disagreed with plaintiff Daniel Matera, who said that the accusations against Google centered around violations of the California Electronic Communications Privacy Act and Invasion of Privacy Act, and not those related to the FCRA.

The motion to stay claimed, “Here, Defendant argues that a stay is warranted because the Spokeo decision may result in ‘a ruling that could eliminate Plaintiff’s sole basis for standing and dispose of this case in its entirety.’”

Judge Koh disagreed with Matera’s claim that the Spokeo decision was unrelated and would not impact his suit, claiming that Matera’s view of the lack of relationship between the lawsuits was “unlikely” due to the similarities between the cases.

The Supreme Court is expected to issue a decision on the Spokeo case within months, and at the latest by June 2016, when the Supreme Court term ends. Judge Koh noted that the upcoming ruling on 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 case.

Judge Koh stated, “As defendant correctly notes, U.S. Supreme Court decisions on Article III jurisdiction are often applied broadly in analogous contexts reaching beyond the specific statue which gave rise to the decision. Thus, the U.S. Supreme Court’s decision in Spokeo is likely to be instructive in this case, regardless of whether it is formally controlling or directly addresses ECPA and CIPA.”

Matera also opposed Google’s motion to stay saying that the two California statutes, ECPA and CIPA, have a history of addressing violations as concrete harm to consumers, an argument Judge Koh deemed “more persuasive.”

Judge Koh responded to the opposition, saying, “The court need not resolve the merits of plaintiff’s standing argument at this juncture, however, because regardless of which path the U.S. Supreme Court ultimately takes, Spokeo may provide substantial guidance as to what statutory violations (if any) confer Article III standing.”

Matera filed the proposed class action against Google last September alleging that Google never obtained consent to catalog and analyze the content of personal messages, an act which he compared to “AT&T eavesdropping on each of its customers’ phone conversations, or of the postal service taking information from private correspondence.” The lawsuit was consolidated into an MDL later that month.

The proposed class of consumers in Matera’s lawsuit include California residents who don’t have a Gmail account but who send messages to Gmail users, allegedly exposing the contents of the private communication to Google through its analytics system without consumer’s knowledge or permission.

The Spokeo lawsuit was filed by a man who alleged that the “people search engine” company violated the FRCA when it reported he was prosperous and possessed a graduate degree, when in actuality, he was having difficulty finding work. The Supreme Court justices were split in their decisions on how broadly interpreted the FRCA is meant to be.

The plaintiffs are 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.

UPDATE: On May 16, 2016, the U.S. Supreme Court ruled on Robins v. Spokeo that plaintiffs must prove both “concrete and particularized” injury when pursuing litigation under the Fair Credit Reporting Act (FCRA) instead of focusing on mere technical violations.

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.