Antitrust Law Daily Wrap Up, PRIVACY—E.D. N.Y.: Privacy claims fail over Google’s alleged disclosure of private email information, (Nov 18, 2013)

By Linda O’Brien, J.D., LL.M.

Privacy claims filed by an individual user of an email service against Google, Inc. for the public disclosure of private information without his consent were dismissed for improper venue by the federal district court in Brooklyn, New York (Rudgayzer v. Google, Inc., November 14, 2013, Glasser, I.).

Google launched a social networking tool, Buzz, in 2010. For users of Google’s free email service, Gmail, who had created public Google profiles, Buzz automatically made public a list of people with whom the user had frequently emailed or chatted. Albert Rudgayzer, who had a Gmail account when Buzz was launched, filed a class action complaint against Google along with two other individuals claiming violations of federal and state privacy laws. The class action was subsequently settled. However, Rudgayzer excluded himself from the class and filed his complaint in 2013, alleging violations of the Stored Communications Act for purportedly making public his private information without his consent. Google filed a motion to dismiss or transfer the plaintiff’s action on the basis of improper or inconvenient venue.

Google argued that the action should be dismissed for contravening the forum-selection clause setting venue in Santa Clara County, California that the plaintiff agreed to when he signed up for a Gmail account. The Gmail account agreement also provides a separate choice-of-law clause that provides that the agreement is governed by the laws of the state of California.

Rudgayzer contended that the forum-selection clause was invalid as venue could only be determined by state (California) venue laws.

A forum-selection clause is presumed enforceable if: (1) the moving party shows that the clause was reasonably communicated to the party challenging enforcement, (2) the clause is mandatory under state contract law, and (3) the claims and parties involved in the suit are subject to the clause under state contract law. In this case, the forum-selection clause was reasonably communicated to Rudgayzer as Google required all users to agree to the terms of use before creating a Gmail account. The clause was also plainly mandatory as it required all suits to be brought in the selected forum and venue. Thirdly, since the privacy claims arose from Rudgayzer’s and Google’s contract relationship under the terms of use agreement, his claims were within the scope of the clause. Finally, the plaintiff did not show that the enforcement of the forum-selection clause would be unreasonable or unjust, the court concluded. Given the enforceability of the clause, the court dismissed the action without prejudice.

The case is No. 13 CV 120.

Attorneys: Todd C. Bank (Law Office of Todd C. Bank) for Albert Rudgayzer. Dennis C. Hopkins (Perkins Coie LLP) for Google, Inc.

Companies: Google, Inc.

Cases: Privacy NewYorkNews