Google Email Scanning Class Settlement OK’d on Second Try

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By Jimmy H. Koo

Alphabet Inc.'s Google convinced a federal court that changes to a proposed settlement of class claims over scanning user emails are sufficient to now gain preliminary approval ( Matera v. Google, Inc. , N.D. Cal., No. 15-cv-04062, settlement preliminary approval 8/31/17 ).

The case highlights the importance of using specific, clear, and detailed language to explain how a defendant will implement technical measures for providing the injunctive relief set out in a settlement. Here, the addition of a few words detailing how Google will implement its promise to not scan and store user email data without consent was enough to convince the court to preliminarily approve a settlement that it had previously rejected.

Judge Lucy H. Koh of the U.S. District Court for the Northern District of California rejected the proposed settlement in March because it was “difficult to understand” and didn’t “clearly disclose what technical changes the settlement requires.” Now, Koh ruled that the settlement agreement provides the injunctive relief sought by the plaintiffs under the California Invasion of Privacy Act and the federal Wiretap Act.

According to the plaintiffs’ amended class complaint, Google didn’t have a policy of obtaining nonusers’ consent or notifying them about its email scanning practice. In settling the allegations, Google agreed in December 2016 to eliminate the processing of private emails for advertising purposes prior to inbox delivery.

The settlement doesn’t give consumers any financial payments, but it doesn’t prevent individual plaintiffs from filing separate lawsuits to seek monetary damages. It also awards up to $2.2 million in attorneys’ fees to plaintiffs’ counsel.

Jay Edelson, partner and founder of plaintiff-side class action law firm Edelson PC in Chicago, told Bloomberg BNA Sept. 1 that the settlement is weak, and said the plaintiffs’ bar should “work hard to make sure these types of injunctive settlements are used only in the rare case.” Edelson previously told Bloomberg BNA that the overuse of injunction-only settlements benefits “attorneys more than their clients.”

Google didn’t immediately respond to Bloomberg BNA’s email request for comment.

Cooley LLP represents Google. Gallo LLP, Carney Bates & Pulliam PLLC and Lieff Cabraser Heimann & Bernstein LLP represent the putative class. Gallo LLP declined to comment. Other counsel for the plaintiffs didn’t immediately respond to Bloomberg BNA’s email requests for comment.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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