May 27, 2015
SAN FRANCISCO — Yahoo Inc. must face a class action challenging the company’s interception, scanning and storage of incoming emails, a federal judge ruled Tuesday.
U.S. District Judge Lucy Koh of the Northern District of California certified a nationwide class in a privacy suit brought on behalf of non-Yahoo mail subscribers who claim their emails were impermissibly scanned to help sell targeted ads.
Plaintiffs, represented by co-lead counsel at Kaplan Fox & Kilsheimer and Girard Gibbs, are seeking an injunction requiring Yahoo to stop scanning nonusers’ communications without consent, to delete all stored emails and to disclose all entities with which it shared or sold the data.
Koh rejected Yahoo’s contention that would-be class members had consented to the company’s conduct by continuing to email Yahoo users after learning about the scanning practices, saying that would amount to a Catch-22. Class members would have to demonstrate that they ceased emailing Yahoo subscribers in order to avoid giving consent, Koh wrote, but would have to continue emailing with Yahoo subscribers to have standing to seek injunctive relief.
“Yahoo’s argument would have the functional effect of eliminating injunctive relief altogether,” Koh wrote in the 44-page order. “The court declines to impose an impossible burden on plaintiff.”
In August, Koh allowed plaintiffs’ claims in In re Yahoo Mail Litigation, 13-4980, to proceed under the federal Stored Communications Act and California’s Invasion of Privacy Act. Tuesday’s ruling certified a nationwide class under the SCA and a California-only subclass under the state privacy act. Plaintiffs had sought a nationwide class under the California law, but Koh found that the other 49 states have an interest in applying their own wiretapping laws to their residents.
Plaintiffs co-lead counsel Daniel Girard of Girard Gibbs declined to comment on Koh’s decision. ZwillGen’s Marc Zwillinger, who represents Yahoo along with a Morrison & Foerster team, directed a message to a company spokesperson, who declined to comment.
Koh denied class certification last year in a similar suit seeking damages against Google over its alleged scanning of email to sell targeted ads. Yahoo’s lawyers argued that individual inquiries into whether class members consented to Yahoo’s conduct would overshadow common questions, just as Koh found in the Gmail case.
Koh found the comparison unpersuasive in a case seeking only injunctive and declaratory relief. Plaintiffs in the Yahoo suit, she wrote, “made the strategic decision” to seek an injunction, rather than damages, and bear a lesser burden.
“Plaintiffs need only show the existence of a common question of law or fact that is significant and capable of classwide resolution,” Koh wrote.
San Mateo solo practitioner Ara Jabagchourian, who filed the first email scanning complaint against Yahoo while a partner at Cotchett, Pitre & McCarthy, said it was a “very smart move” for plaintiffs counsel to drop their demand for statutory damages.
Some privacy suits have fizzled at class certification, and seeking an injunction is a logical move to help get over that hurdle, said Jabagchourian, who dropped his suit against Yahoo in the early stages. The case now hinges on evidence of how Yahoo’s email system actually works, he said, particularly whether plaintiffs’ communications were intercepted in transit or shared with third parties.
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