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Too Big To Nail?

Mar 04, 2014

A proposed class action suit raises the question whether Internet search giant Google is too big to nail. Sort of.  

The case, currently pending in federal court in San Jose, asks the court to certify a class of Google customers who claim that Google intercepted and read private e-mails to create tailored advertising and build user profiles. If the court certifies the class, it could consist of hundreds of millions of Internet users – most anyone who sent or received an e-mail. And Google’s exposure could amount to trillions of dollars. 

Google makes two primary arguments why the court should not certify the class. The first is pretty standard – the proposed class does not satisfy the “commonality” standard. A class action requires that its members have a common complaint and that the cases are similar enough to one another – in terms of legal arguments but also evidentiary matters – to justify treating the cases as one big lawsuit. If the claims are like cookie cutters, class status is likely. If they’re more like snowflakes, probably not. 

Google contends that this case is a collection of snowflakes. It argues that the evidence would encompass more than a billion e-mails, and there would be case by case differences over what each sender and receiver knew about whether Google was scanning.  

The plaintiffs’ lawyers contend that the case is perfectly suited for class treatment, since Google made uniform disclosures about what it was doing with its data. If that uniform disclosure was false, according to plaintiffs, then the class action route is entirely appropriate.

But Google’s other argument against certification is the sheer Mt. Everest enormity of the case. According to Google, the class would "indiscriminately amass together virtually everyone in the United States with a non-Gmail e-mail account, along with large groups of the over 400 million people who use Gmail and Google Apps." Well, perhaps that is the price of popularity. But it begs the question whether a class action should fail because it is too big. The rules of procedure require that the class satisfy a “numerosity” requirement – meaning that there have to be more than a handful of claims. But I don’t see anything in the rules that say a class can be too big. And I Googled it.

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