U.S. District Judge Lucy Koh, Northern District of California (Jason Doiy / The Recorder)
SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit has stymied plaintiffs’ latest bid to revive a class action accusing Google of violating federal wiretap law by automatically scanning Gmail messages.
In a crisp order issued Monday, Circuit Judges Edward Leavy, Consuelo Callahan and Andrew Hurwitz denied plaintiffs’ request for interlocutory review of U.S. District Judge Lucy Koh’s order denying class certification. Represented by Texas’ Wyly-Rommel and Alabama’s Cory Watson Crowder & DeGaris, plaintiffs in Dunbar v. Google, 13-2430, claimed that the Mountain View company intercepted messages sent through its Gmail service to mine users’ personal information.
Koh rejected Google’s bid to dismiss the multidistrict litigation last fall, concluding that the company’s privacy policies were not explicit about the interceptions. But she rejected plaintiffs’ request to certify vast classes in March, finding that the litigation would require inquiries into how much each user knew about Google’s practices.
Plaintiffs lawyers asked to file their motion for Ninth Circuit review under seal, noting that Koh had shielded much of the litigation from public view. Google lawyer Michael Rhodes of Cooley insisted that the Ninth Circuit did not need to review the order, citing the litigation’s protracted journey through the courts.
“No fewer than three district court judges have now sifted through the immense evidentiary record in this case and concluded each time that certification is inappropriate given the unique facts in this matter,” Rhodes wrote in opposition to the plaintiffs’ request for an appeal.
The Ninth Circuit has discretion over whether to review class certification orders, and Rhodes argued that the bar was high. Review would only be appropriate if the court were to find that Koh made a “manifest error” that may have tainted the entire decision, Rhodes wrote.
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