A district court in California joined a growing number of other courts in finding that Google may not hide behind the “ordinary course of business” exception found in the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510, et seq., to scan its users’ emails with impunity.

According to the plaintiffs in In re: Google Inc. Gmail Litigation, No. 13-md-02430, since approximately 2008, Google has intercepted and read the content of all emails that were sent or received by users of its free email service, Gmail, for the purposes of sending an advertisement relevant to that email communication to the recipient, sender or both.

The plaintiffs further alleged that the process by which Google intercepted and read its users’ emails occurred and was conducted separate from Google’s other email processes, including spam and virus filtering.

The plaintiffs claimed that Google was in violation of the ECPA, which generally prohibits the interception of “wire, oral, or electronic communications” and provides a private right of action against any person who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a).

The law defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. at § 2510(4).

Google argued that there was no interception because, under the “ordinary course of business” exception, “any telephone or telegraph instrument, equipment or facility, or any component thereof . . . being used by a provider of wire or electronic communication service in the ordinary course of its business” falls outside of the definition. 18 U.S.C. § 2510(5)(a)(ii).

However, the Court rejected Google’s reasoning, finding that the ECPA exception should not be interpreted so broadly as to permit the company to do anything it wished with its users’ data.

The exception should be interpreted narrowly. The Court specifically found that the exception is designed only to protect electronic communication service providers against a finding of liability under the law where the interception facilitated or was incidental to provision of the electronic communication service at issue.

Because the plaintiffs had plausibly alleged that Google intercepts its users’ emails for the purpose of creating user profiles and delivering targeted advertising, processes which are not instrumental to Google’s ability to transmit emails, the Court denied Google’s motion to dismiss plaintiffs’ claims.

The full text of U.S. District Judge Lucy H. Koh is available here.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.


In Corvello v. Wells Fargo Bank, NA, 11-16234, 11-16242, 2013 WL 4017279 (9th Cir. Aug. 8, 2013) (a copy of the opinion can be found here), the Ninth Circuit reversed the lower Court’s dismissal of two consolidated class action complaints, holding that if a borrower complies with a standardized Home Affordable Modification Program (“HAMP”) trial period plan (“TPP”), the mortgage servicer is contractually required to either offer a permanent modification or promptly notify the borrower, in writing, that he or she does not qualify.

In aligning with the Seventh Circuit’s decision in Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), the Ninth Circuit rejected Wells Fargo’s argument that the promise to provide a permanent modification is not enforceable where a fully-executed modification may not have been delivered.  Corvello, 2013 WL 4017279 at *4.  Citing Wigod, the Ninth Circuit recognized that banks are “required to offer permanent modifications to borrowers who completed their obligations under the TPPs, unless the banks timely notified those borrowers that they did not qualify for a HAMP modification.”  Corvello, 2013 WL 4017279 at *4.  In reversing the district Court, the Ninth Circuit held in relevant part:

Wells Fargo’s interpretation of the TPP was suspect because it allowed banks to avoid their obligations to borrowers merely by choosing not to send a signed Modification Agreement, even though the borrowers made both accurate representations and the required payments. As the Seventh Circuit put it, Wells Fargo’s interpretation would allow it to “simply refuse to send the Modification Agreement for any reason whatsoever—interest rates went up, the economy soured, it just didn’t like [the Borrower]—and there would still be no breach … turn[ing] an otherwise straightforward offer into an illusion.” Wigod, 673 F.3d at 563

We believe the reasoning in Wigod is sound. Paragraph 2G cannot convert a purported agreement setting forth clear obligations into a decision left to the unfettered discretion of the loan servicer. The more natural and fair interpretation of the TPP is that the servicer must send a signed Modification Agreement offering to modify the loan once borrowers meet their end of the bargain.


Wells Fargo’s own failure to fulfill the notification obligation does not deprive plaintiffs of the benefits of their agreement.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.

A recent ruling in the United States District Court for the District of Maryland reaffirms a defining characteristic of the collective action.

Potential claimants’ legal rights are preserved unless and until they affirmatively agree to “opt in” to the litigation. They may elect to participate, file an individual lawsuit or do nothing at all.

With class actions, which proceed under Federal Rule of Civil Procedure 23, the situation is reversed. Potential claimants must affirmatively “opt out” of a certified action otherwise their legal rights will be resolved in the litigation.

As such, inaction by potential claimants may result in very different consequences depending on whether the claims are being resolved under the FLSA or Rule 23.

In Vetter v. GEICO General Insurance Company, et al., No. 8:13-cv-00642 (D. Md. Sept. 25, 2013), the court was confronted with a second motion for conditional certification and judicial notice under the FLSA for a group of GEICO Security Investigators who the plaintiffs claimed had been misclassified as exempt and, thus, not owed overtime pay.

Defendants claimed that the plaintiffs were precluded from seeking collective treatment in the latter case because they had previously received notice in a prior case and elected not to participate.

However, the plaintiffs correctly argued that the law is clear that the opt-in provision of FLSA provides for no legal effect on those parties who choose not to participate. Despite the identical nature of the two proceedings, the plaintiffs also argued that a second judicial notice was still appropriate because the prior notice was obviously ineffective to notify potential plaintiffs of their right to opt in to the new case.

The court sided with the plaintiffs and granted the motion for conditional certification and judicial notice.

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.