• by Wendy Davis , Staff Writer @wendyndavis, April 4, 2014

Consumers who say that their privacy is violated by Gmail ads are urging an appellate court to allow them to proceed with a class-action.

This week, the users filed papers asking the 9th Circuit Court of Appeal to hear an appeal of  U.S. District Court Judge Lucy Koh's decision to deny the consumers class-action status. Theoretically, that ruling still allows the consumers to move forward as individuals, but not on on behalf of other people who have used Gmail to send or receive mail. As a practical matter, however, the ruling makes it nearly impossible for consumers to go ahead with this type of privacy lawsuit against a company like Google. That's because the legal fees for this sort of case tend to be prohibitive for individuals. But attorneys who win class-action cases usually recover their fees paid from the losing company.

At this point, it's hard to evaluate the consumers' arguments, because they filed them under seal. In fact,  many of the legal documents in this case have been filed in secret -- largely because Google has requested confidential treatment for a host of information. In what is probably the most extreme example, Google has asked to edit the transcript of a hearing by deleting statements that were made in open court by attorneys for the consumers. A group of news organizations are fighting to unseal the records, but for now, much remains secret.

Koh's refusal to certify the case as a class-action gave Google a big boost in the litigation. But in September, Koh issued a ruling against Google on a key issue when she said that the company potentially violates the federal wiretap law by scanning emails in order to surround them with targeted ads. That law prohibits companies from intercepting emails without users' consent.

Google had argued that users consent by accepting the terms of service. But Koh said the company's user agreement didn't make clear that it scans email messages for ad targeting purposes. Google asked Koh for permission to appeal that ruling to the 9th Circuit, but she rejected the request.

Meanwhile, Google and the consumers are slated to go to mediation later this month. If they resolve their differences out of court, the appellate court won't have any reason to revisit Koh's rulings.