On April 4, 2024, the United States District Court for the Northern District of California denied the certification of a class action lawsuit from potentially tens of millions of Google account holders against Google. Plaintiffs alleged that Google sells its account holders’ personal information billions of times each day to hundreds of participant advertisers despite repeatedly promising not to do so. In denying the class certification, the District Court held that while consumers meet certain certification requirements such as numerosity, typicality, and adequacy, the current class definition is improperly fail-safe. A fail safe class is one where membership depends on whether the person has a valid claim.

The District Court concluded that Rule 23 of the Rules of Civil Procedure does not permit class certification that potentially includes more than a de minimis number of injured class members. In other words, the proposed class definition potentially included individuals who lacked a concrete injury.  Therefore, the District Court also concluded that it does not have sufficient information at this stage to determine whether omitting personal information from the class definition would result in the class being overbroad. The District Court further concluded that it would rule on class definition at the next round of briefing.

The District Court’s ruling ultimately narrows the size of the class to members who can show that they suffered an injury. This ruling by the District Court serves as a reminder that absent class members will need to show that they  suffered an actual injury.