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Gmail data-mining lawsuits fail to get class action status

Claims from schools, biz, individuals can't be borged – judge

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Google has made its job of defeating a series of lawsuits over the privacy of its Gmail service much easier now that the judge has agreed that the cases can't be combined into a class action lawsuit.

US District Judge Lucy Koh said that the claims from several sources that Gmail was scanning their messages to build up account profiles and target users with ads were too dissimilar to allow them to be added up into one single lawsuit.

Much of the problem lay in the different types of users that could be affected by Google's alleged privacy violators, including Gmail users, businesses schools and ISPs which use Google Apps and are on Gmail – and even those people who received email from Gmail accounts but don't have Gmail themselves.

Because different users received different levels of access to privacy policies and terms of service, it becomes difficult to figure out which of them weren't adequately informed of Google's practices if they were all in one lawsuit.

"The question of whether class members have consented to the alleged interceptions has been central to this case since its inception," Judge Koh wrote in her ruling. "Specifically, the issue of whether email users consented to the alleged interceptions was at issue in all rounds of briefing on motions to dismiss, all three rounds of briefing on class certification, and the briefing on the motion for leave to amend.

"The court finds that individual issues of consent are likely to predominate over any common issues, and that accordingly, class certification would be inappropriate."

The decision is a blow to the complainants in the separate cases as class action suits can ask for greater damages and therefore have more power to force a settlement because of the bigger risk of defending against them before a jury. Individual plaintiffs and smaller educational facilities and companies will also have a hard time coming up with the cash to pay for an expensive case against Google's gaggle of lawyers. ®

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