Gmail MDL moves forward; Second case management conference set for May

By Bethany Krajelis | Apr 25, 2013


Less than a month after multi-district litigation over Gmail was consolidated in California, both parties assert they are ready to move forward.

The parties – defendant Google and several plaintiffs, including one from Illinois, who accuse the Internet giant of scanning Gmail users’ emails for advertising purposes—submitted a joint case management statement last week to U.S. District Judge Lucy Koh of the Northern District of California.

An initial case management conference took place late last week, when Koh set another conference for May 8 and several other deadlines.

Citing “efficiency concerns,” Koh in her case management order rejected the plaintiffs’ proposed leadership structure that was included in the parties’ joint statement and gave them an April 26 deadline to file a new leadership structure.

In the meantime, she appointed Texas attorney Sean Rommel and Alabama attorney F. Jerome Tapley as interim co-lead counsel for the plaintiffs.

She also set a May 16 deadline to file a consolidated complaint, a Sept. 5 hearing on any motions to dismiss and a Jan. 14, 2014 hearing on the plaintiffs’ motion for class certification. Given that the MDL is in its early stages, these dates could change.

The U.S. Panel on Multidistrict Litigation (JPML) in March heard Google’s request for coordinated or consolidated pretrial proceedings. The JMPL granted that request and on April 1, issued an order transferring six cases to the federal court for the Northern District of California.

Out of the six suits, two come from the Northern District of California and one each from the following federal courts: the Southern District of Illinois, the Northern District of Florida, the Eastern District of Pennsylvania, and the District of Maryland.

All six suits, according to the JMPL order, “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 the recently submitted joint statement, Google asserts that “Like all email services, the Gmail system applies automated processing to emails for various purposes,” such as filtering out spam, detecting viruses and providing helpful features to users.

“Automated processing is also applied to provide more relevant advertising to Gmail users,” according to Google’s position in the joint statement that notes “these processes are automated and involve no human review.”

It explains, “Google includes small ads in the Gmail interface and uses the revenue to offset the cost of providing Gmail as a free service. To make these ads more relevant to users, Google sometimes matches the ads to terms in the user’s email messages.”

Google further asserts that in order to use Gmail, users must agree to the company’s Terms of Service  and a privacy policy that allows for “the processing and use of email text to deliver Google services, including the display of advertisements and other features in Gmail.”

Thomas Rosenfeld, Mark Goldenberg and Kevin Green of Goldenberg, Heller, Antognoli & Rowland in Edwardsville submitted the complaint on behalf of A.K., the plaintiff in the sole Illinois case in the multi-district litigation.

A few attorneys with the San Francisco law firm of Kerr & Wagstaffe LLP also represent A.K. in the multi-district litigation, according to electronic court records.

Records show that several attorneys represent Google and list Texas attorney Charles Babcok as the defendant's lead attorney.

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