Case 5:15-cv-04062-LHK Document 71 Filed 03/15/17 Page 1 of 6

8 UNITED STATES DISTRICT COURT

9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11

12 DANIEL MATERA, Case No. 15-CV-04062-LHK

Northern District of California
United States District Court

13 Plaintiff, ORDER DENYING PRELIMINARY

APPROVAL OF CLASS ACTION
14 v. SETTLEMENT
15 GOOGLE INC., Re: Dkt. No. 62
16 Defendant.

17

18 Plaintiffs Daniel Matera and Susan Rashkis (Plaintiffs) sue Defendant Google Inc.

19 (Google or Defendant) for violations of the California Invasion of Privacy Act (CIPA), Cal.

20 Pen. Code 630, et seq., and violations of the Electronic Communications Privacy Act (Wiretap

21 Act or ECPA), 18 U.S.C. 2510, et seq. Before the Court is Plaintiffs motion for

22 preliminary approval of class action settlement. ECF No. 62 (Mot.). The Court held a hearing
on this motion on March 9, 2017. Having considered Plaintiffs motion, the arguments of counsel
23
at the March 9, 2017 hearing, and the record in this Case, the Court DENIES Plaintiffs motion for
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preliminary approval of class action settlement.
25
I. LEGAL STANDARD
26
Federal Rule of Civil Procedure 23(e) provides that [t]he claims, issues, or defenses of a
27

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1 certified class may be settled . . . only with the courts approval. Fed. R. Civ. P. 23(e). The

2 purpose of Rule 23(e) is to protect the unnamed members of the class from unjust or unfair

3 settlements affecting their rights. In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir.

4 2008). Accordingly, in order to approve a class action settlement under Rule 23, a district court

5 must conclude that the settlement is fundamentally fair, adequate, and reasonable. Hanlon v.

6 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).

7 II. DISCUSSION

8 Google intercepts, scans, and analyzes the content of emails sent by non-Gmail users for

9 the purpose of creating user profiles of Gmail users to create targeted advertising for Gmail users.1

10 This fact is not disclosed in Googles operative Privacy Policy or Terms of Service.2 In fact,

11 neither document mentions non-Gmail users at all. Matera v. Google, Inc., 2016 WL 5339806, at

12 *18 (N.D. Cal. Sept. 23, 2016) (noting Googles operative Terms of Service and Privacy Policy
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13 make[] no mention of non-Gmail users). Moreover, the parties class action settlement for

14 which they seek preliminary approval from the Court fails to require Google to disclose this

15 information. See ECF No. 62-1 (Settlement Agreement). The settlement provides for only an

16 injunction, a release of the classs claims, and a request for $2.2 million in attorneys fees. See id.

17 at 34, 58.

18 In support of the settlement, Plaintiffs contend that the injunction will bring Google into

19 compliance with the Wiretap Act and the CIPA. Mot. at 4. Further, Plaintiffs state that the

20 settlement will provide a notice to the class that provides sufficient disclosures to the class of

21 Googles email scanning practices. See ECF No. 70 (Hrg Tr.), at 3. The notice to which

22 Plaintiffs refer is notice that Plaintiffs are required to provide the class in order to obtain final

23
1
24 Currently, the record is not entirely clear on whether and when Google intercepts, scans, or
analyzes outgoing emails sent from Gmail users to non-Gmail users. See ECF No. 62-1
25 (Settlement Agreement), at 34.c (noting that Google will refrain, rather than eliminate any
processing of outgoing email sent by Gmail users (emphasis added)).
2
26 The Courts September 23, 2016 order granting in part and denying in part Defendants motion
to dismiss based on lack of standing analyzed Googles April 14, 2014 Terms of Service and
27 December 19, 2014 Privacy Policy. At the March 9, 2017 hearing, the parties confirmed that
those are the operative documents on this issue. Hrg Tr. at 3.
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1 approval of the class action settlement. See Fed. R. Civ. P. 23(e)(1) (The court must direct notice

2 in a reasonable manner to all class members who would be bound by the proposal); ECF No. 62-

3 1 (Notice). This proposed class settlement notice states the following:

4 In the settlement, Google has agreed to insure that all incoming

email to Gmail users and all outgoing email from Gmail users is
5 processed in a manner that plaintiffs and Class Counsel agree does
not violate CIPA or the Wiretap Act. Specifically, (1) for incoming
6 email, Google will eliminate any processing of email content that it
applies prior to the point when the Gmail user can retrieve the email
7 in his or her mailbox using the Gmail interface (currently, this
occurs when the email is stored in the Tingle server) that is used
8 for the distinct purpose of advertising and creating advertising user
models; (2) with regard to any information generated by other
9 processing of email content that Google applies before the Gmail
user can retrieve the email in his or her mailbox using the Gmail
10 interface, Google will not use or access such information for the
purpose of serving targeted advertisements or creating advertising
11 user models until after the Gmail user can retrieve the email in his or
her mailbox using the Gmail interface; (3) for outgoing email,
12 Google will refrain from any processing of email content that it
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applies prior to the point when the Gmail user can retrieve the
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13 outgoing email in his or her mailbox using the Gmail interface

(currently, this occurs when the email is stored in the Tingle
14 sever) that is used for the distinct purpose of advertising and
creating advertising user models; and (4) with regard to any
15 information generated by other processing of email content that
Google applies before the Gmail user can retrieve the outgoing
16 email in his or her mailbox using the Gmail interface, Google will
not use or access such information for the purpose of serving
17 targeted advertisements or creating advertising user models until
after the Gmail user can retrieve the email in his or her mailbox
18 using the Gmail interface.
19 Notice, at 2.

20 This notice is difficult to understand and does not clearly disclose the fact that Google

21 intercepts, scans, and analyzes the content of emails sent by non-Gmail users to Gmail users for

22 the purpose of creating user profiles of the Gmail users to create targeted advertising for the Gmail

23 users. Moreover, the notice does not clearly disclose what technical changes the settlement

24 requires. At the preliminary approval hearing, the parties explained that the injunction would

25 prohibit Google from scanning in transit email for the sole purpose of collecting advertising data,

26 but would allow Google to scan incoming in transit email for the dual purpose of (1) detecting

27 spam and malware and (2) obtaining information that would be later used for advertising

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1 purposes. Hrg Tr. at 26 (emphasis added). Specifically, once the email is in storage, the

2 injunction allows Google to access the metadata generated during the spam scanning process

3 which was collected while the email was in transitand use that metadata for advertising

4 purposes. Id. at 27 (emphasis added). The dual purpose to which Plaintiff refers is not clearly

5 disclosed in the notice to Class Members. See Notice, at 2.

6 Further, it is not clear that the dual purpose will bring Google into compliance with the

7 Wiretap Act and CIPA. See Backhaut v. Apple, Inc., 74 F. Supp. 3d 1033, 1042 (N.D. Cal. Nov.

8 19, 2014) (noting that the Wiretap Act protects communications in transit and generally

9 prohibits the interception of wire, oral, or electronic communications); NovelPoster v.

10 Javictch Canfield Grp., 140 F. Supp. 3d 938, 954 (N.D. Cal. 2014) (The analysis for a violation

11 of CIPA is the same as that under the federal Wiretap Act.). Plaintiffs motion for preliminary

12 approval provides no authority as to whether or why the injunctions dual purpose interception,
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13 scanning, and analysis of in transit emails brings Google into compliance with the Wiretap Act or

14 CIPA. See generally Mot.

15 Accordingly, the Court DENIES Plaintiffs motion for preliminary approval. The notice to

16 Class Members, which is the only form of disclosure that Class Members will receive under the

17 settlement, is inadequate. The notice does not clearly disclose that Google intercepts, scans, and

18 analyzes the content of emails sent by non-Gmail users to Gmail users for the purpose of creating

19 user profiles of the Gmail users to create targeted advertising for the Gmail user. It does not

20 disclose that Google will scan the email of non-Gmail users while the emails are in transit for the

21 dual purpose of creating user profiles and targeted advertising and for detecting spam and

22 malware. Moreover, because Plaintiffs motion cites no case law and provides no argument as to

23 whether the dual purpose scanning permitted under the settlement is lawful under the Wiretap

24 Act and CIPA, it is not clear to the Court at this time that the technical changes that the settlement

25 provides brings Google into compliance with the Wiretap Act and CIPA, as Plaintiffs assert.

26 Plaintiffs continue to argue that this settlement is no different than the settlement in In re

27 Yahoo Mail Litigation, 2016 WL 4474612 (N.D. Cal. Aug. 25, 2016). However, every case and

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1 every settlement are different. The Yahoo settlement took place after more than two years of

2 litigation and a mere six days before the hearing on the parties fully briefed cross-motions for

3 summary judgment. At the time of settlement, the Court had spent considerable time analyzing

4 the parties summary judgment issues. Moreover, the parties and the Court had much more

5 information to assess the risks of litigation and determine whether the class action settlement was

6 fair and reasonable under the circumstances. Specifically, in Yahoo, the Court denied Yahoos

7 motion to dismiss on August 12, 2014. In re Yahoo Mail Litig., 7 F. Supp. 3d 1016 (N.D. Cal.

8 2014). The parties completed fact discovery on May 1, 2015, and the Court certified an injunctive

9 class and denied class certification of a damages class on May 26, 2015. In re Yahoo Mail Litig.,

10 308 F.R.D. 577 (N.D. Cal. 2016). The parties completed expert discovery on August 28, 2015,

11 and the parties briefed cross-motions for summary judgment from September 19, 2015 through

12 November 16, 2015. See In re Yahoo Mail Litig., Case No. 13-CV-04980-LHK, ECF Nos. 131 &
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13 135. Furthermore, as the Court found in its order on Yahoos motion to dismiss, Yahoo disclosed

14 in its Privacy Policy even before the Yahoo lawsuit was filed that Yahoo scanned non-Yahoo

15 users email to Yahoo users. See In re Yahoo Mail Litig., 7 F. Supp. 3d at 1022. Moreover, the

16 settlement in Yahoo included additional important disclosures regarding scanning of incoming and

17 outgoing emails and the sharing of information with third parties. See In re Yahoo Mail Litig.,

18 2016 WL 4474612, at *4 (N.D. Cal. Aug. 25, 2016).

19 In the instant case, by contrast, the parties litigated only a motion to dismiss and a motion

20 to stay before settlement. The parties have not taken any depositions in this case, and Google has

21 only produced documents from prior litigation.3 Specifically, the discovery in this case has

22 consisted of 11 interrogatories and Plaintiffs review of documents from the In re Google Inc.

23 Gmail Litigation, Case No. 13-MD-02430-LHK. The lead case in Gmail, Dunbar v. Google, was

24 filed on November 17, 2010. See Case No. 10-CV-194-LHK. Fact discovery was scheduled to

25 conclude in Gmail on May 23, 2014, which was also the date that a majority of the individual

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27 3
Class Counsel represents that their current lodestar is $1.25 million for this work. Hrg Tr. at 52.
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1 plaintiffs in Gmail stipulated to dismissal because this Court denied class certification on March

2 18, 2014. See Case No. 13-MD-02430-LHK, ECF No. 176. Accordingly, discovery in Gmail was

3 conducted between three and six years ago. Plaintiffs use of discovery produced between three to

4 six years ago is particularly questionable in this case given that the instant settlement requires

5 Google to maintain the injunctions technical changes for only three years because the

6 architecture and technical requirements for providing email services on a large scale evolve and

7 change dynamically. Settlement Agreement 34.d.

8 Indeed, the discovery in Gmail illustrates how important depositions are in a case such as

9 this. In Gmail, it was not until the July 15, 2011 deposition of Thompson Alexander Ivor Gawley,

10 Googles senior product manager for the Gmail system, that Plaintiff Dunbar learned for the first

11 time that Google was scanning and extracting information from non-Gmail users in the same way

12 that Google was scanning and extracting emails received by Gmail users. See Dunbar v. Google,
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13 2012 WL 6202797, at *3 (N.D. Cal. Dec. 12, 2012).

14 In sum, based on the parties current filings, the Court cannot conclude that the settlement

15 is fundamentally fair, adequate, and reasonable. Hanlon, 150 F.3d at 1026. Accordingly, for

16 the foregoing reasons, Plaintiffs motion for preliminary approval of class action settlement is

17 DENIED.

18 IT IS SO ORDERED.

19

20 Dated: March 15, 2017

21 ______________________________________
LUCY H. KOH
22 United States District Judge
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