Professor Deborah Hensler comments on how the size of classes in class-action lawsuits can affect the success of the case in The Daily Journal.

Now that Google Inc. has lost its bid to find a Wiretap Act escape hatch from the huge class action brewing over its Street View collection of home and business Wi-Fi data, its salvation could lie in the very size of the potential class its data harvesting created.

Google acknowledged in 2010 that it had captured 600 gigabytes of Wi-Fi data in the U.S., Europe and Australia as part of its Street View program, using antennas mounted on its photo vehicles. The cache was believed to include fragments of personal information such as bank account numbers, passwords and email addresses.

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It Google continues to fight in court, certification is no sure thing for a mega-class, according to Deborah Hensler, a Stanford Law School authority on mass tort litigation – even though class actions were devised to handle large plaintiff cohorts.

“The efficiency justification for class certifications is the opportunity to resolve legal and factual issues common to many claimants in a single litigation,” she said last week. “But the rule was written in a simpler time and it's not clear the rule-makers contemplated the issues that might arise in a class of millions.”

Hensler pointed to the objections to the big class in Dukes v. Wal-Mart. “The sheer size of the Wal-Mart class seemed to worry some even though it could, I think, have been defined precisely by positions and periods of employment,” she said.