Google suits consolidated in California by JPML; Madison County teen's suit included in transfer order

By Bethany Krajelis | Apr 1, 2013


A Madison County teen’s lawsuit against Google will be handled in California along with a handful of other suits that accuse the internet giant of scanning Gmail users’ emails for advertising purposes.

The U.S. Panel on Multidistrict Litigation (JPML) recently granted Google’s request for coordinated or consolidated pretrial proceedings in the Northern District of California. The request was heard during the panel’s March session.

The consolidated litigation, according to the panel’s transfer order, consists of six actions pending in five districts, including one from the U.S. District Court for the Southern District of Illinois.

Out of the other five suits covered in the JPML order, two come from the Northern District of California, and one each from the Northern District of Florida, the Eastern District of Pennsylvania and the District of Maryland.

All six suits, the order states, “involve allegations that Google’s automated scanning of emails sent to Gmail users for the purposes of sending targeted advertisements to the sender amounts to an illegal “interception” or “eavesdropping” under various federal and/or state wiretapping statutes.”

The Illinois suit – A.K. v. Google – was filed in November by A.K., as next friend of 16-year-old J.K. It seeks class action status and alleges violations of the Electronic Communications Privacy Act (ECPA) and Illinois’ eavesdropping statute.

Google, according to A.K.’s complaint, “utilizes an electronic device to intercept and scan the contents of subscribers’ incoming and outgoing emails immediately after the email communication is sent and before it arrives at its intended recipient.”

This, the suit alleges, “allows Google to place targeted ads on its subscribers’ Gmail screens and, thereby, generate revenue for Google.”

In January, attorneys for Google and the plaintiff filed a consent motion regarding sequencing of initial motion practice, asking the federal court to allow motion practice on the transfer request before any other motions.

Google claimed that as a Gmail user, J.K. is bound by the company’s terms of service, which includes a clause on venue requiring claims to be brought in Santa Clara, Calif.

The motion also noted that the plaintiff intends to object to any such transfer on the grounds that as a minor, J.K “did not and could not consent to a venue selection clause in Google’s Terms of Service.”

U.S. District Judge G. Patrick Murphy granted the consent motion.

According to the JPML, A.K., as well as the plaintiffs in the two actions pending in California, did not oppose centralization1 and supported the Northern District of California as transferee district.

Plaintiffs in the pending Florida, Maryland and Pennsylvania suits, however, opposed centralization.

They, the order states, argued that “Google has admitted to scanning emails,” and “therefore, discovery will not be sufficiently complex or time consuming to warrant centralization.”

“Google argues, and we agree, that while Google admits to the act of scanning, whether such activity constitutes a violation under the statutes at issue will depend on many disputed factual issues that will require complex discovery,” the JPML wrote in its transfer order.

It added “Google’s position is supported by the amount and complexity of the discovery produced thus far in the Northern District of California” case of Dunbar v. Google.

Not only will centralization “serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation,” but the panel explained that it “will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary.”

The JPML also determined that the Northern District of California is an appropriate forum for this litigation because Google is headquartered there and two of the six suits at issue are pending there.

The panel assigned the consolidated matter –In Re: Google Inc. Gmail Litigation MDL No. 2430-- to Judge Lucy H. Koh, who it described as “an experience transferee judge with the willingness and ability to handle this litigation.”

Thomas Rosenfeld, Mark Goldenberg and Kevin Green of Goldenberg, Heller, Antognoli & Rowland in Edwardsville submitted the complaint on behalf of A.K.

San Francisco attorneys Jeffrey Gutkin, Dylan Hale, Whitty Somvichian and Kyle Wong, as well as Belleville attorneys Michael Hermann and Charles Swartwout of Boyle Brasher, were listed as Google's attorneys in the Illinois suit.

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