On March 18, 2014, Judge Lucy Koh of the United States District Court for the Northern District of California denied the plaintiff’s motion for class certification with respect to claims against Google, Inc. premised on its operation of Gmail and its Google Apps services. The plaintiffs in the multi-district litigation, In re: Google, Inc. Gmail Litigation, 5:13-md-02430-LHK (N.D. Cal. 2014), alleged that Google had engaged in unlawful interceptions of the content of their email communications through the use of various processing devices for the purpose of gathering data about users. Judge Koh, in rejecting the plaintiff’s request to certify four different classes, with three subclasses of Google Apps and Gmail users, found that no class could meet the predominance requirement of Rule 23(b)(3).

Noting that the predominance inquiry requires a court to wade into the merits in order to predict to some degree what issues will control the outcome of the case, Judge Koh observed that “the question of whether Class members have consented to the alleged interceptions has been central to this case since its inception.” The so-called “consent exception” in each of the various wiretap statutes at issue made it lawful to intercept communications when a party (or all parties) consented, and consent could have been express, or implied from the circumstances.  Judge Koh held that, because Google argued that each of the users had consented to the interception of their communications either expressly or impliedly (in light of user disclosures, news articles about interceptions, and other sources of notice about the practice), no class-wide adjudication was possible.

The Court found that, particularly with respect to the fact-intensive determinations about implied consent, “individual issues regarding consent are likely to overwhelmingly predominate over common issues,” because “there is a panoply of sources from which email users could have learned of Google’s interceptions….” As a result, certification was denied as to all classes, because “a fact-finder would have to determine to what disclosures each Class member was exposed and whether such disclosures were sufficient to conclude, under the Wiretap Act, that Class members consented to the alleged Google interceptions of email.” In concluding, Judge Koh closed the door on any re-filing of a certification motion by denying the plaintiffs’ motion with prejudice, noting that they had already had three chances to succeed.