Class Granted Cert. in Yahoo Email Scanning Class Action Lawsuit

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Last week in the class action lawsuit accusing Yahoo! Inc. of illegally scanning emails, a nationwide Class of users and a subclass of California users were certified by California federal judge Lucy H. Koh.

The class action lawsuit accuses Yahoo! of violating federal and state privacy laws when the computing company allegedly used an automated system to scan subscriber emails using the Yahoo! Mail system starting in May of 2011.

According to the class action lawsuit, Yahoo! claims that new Yahoo! Mail scans for patterns, keywords and files in Mail Messenger, and other communications content. Its automated systems scan and analyze all incoming and outgoing email, IM, and other communications content sent and received from accounts in order to personalize the user’s experience. The plaintiffs allege that this scanning is the same as reading, attempting to read, learning of the content or meaning of recording, and eavesdropping on the communications sent by Yahoo! Mail users in violation of the federal Stored Communications Act (SCA) and California’s Invasion of Privacy Act (CIPA).

Last Tuesday, U.S. District Court Judge Lucy H Koh issued an order certifying a Class of email users who are not Yahoo! subscribers and who have emailed a Yahoo! address since October 2011. However, Judge Koh did not grant the plaintiffs’ motion certify the nationwide Class to sue Yahoo! under California’s Invasion of Privacy Act. Judge Koh did grant the plaintiffs request for a subclass of non-Yahoo! users in California who emailed users after October 2012.

The defendant in the class action lawsuit, Yahoo! argued in opposition to Class certification that the Class was not cohesive enough because some of the non-Yahoo! users may have known about Yahoo’s scanning policy and consented to that scanning implicitly when they emailed to the Yahoo! account.

“Yahoo may well be correct that some class members do not have viable SCA or CIPA claims because they consented to Yahoo’s conduct,” wrote Judge Koh in the order. “That does not, however, vitiate the operative fact that the proposed Rule 23(b)(2) class challenges Yahoo’s uniform policy of intercepting, scanning and using contents of emails sent to and from Yahoo Mail subscribers by non-Yahoo Mail subscribers,” she concluded.

Judge Koh explained further that California law could not be applied to the entire nationwide Class because claim by a resident of another state would be governed by that state’s wiretap laws, giving rise to diverse legal issues. “These different legal issues eclipse any common issues of law that exist,” Judge Koh pointed out in the order.

Judge Koh also found Yahoo’s argument that the Class Members could have stopped using the email service when they learned of Yahoo’s scanning policy unconvincing, pointing out that if a plaintiff bringing a consumer protection claim had to forgo ever using the allegedly harmful product again, the plaintiff would not be able to show a threat of future harm and therefore lose standing.

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

The Yahoo Email Scanning 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.