In an important case testing whether Internet advertisers violate federal statutes by allegedly placing browser cookies on users' devices without their authorization, the Third Circuit handed down an important victory for a Venable client in the digital advertising industry.
In 20 separate class actions that were ultimately consolidated into one MDL action, plaintiffs alleged that internet advertising companies placed third-party cookies on Internet users' browsing software, in circumvention of the software's cookie-blocking "privacy" settings. Plaintiffs claimed that defendants' conduct violated the federal Wiretap Act, Stored Communications Act, and Computer Fraud and Abuse Act.
The Third Circuit affirmed dismissal of the claims under all three statutes, on the following grounds: The Wiretap Act did not apply because our client was a party to the communications with plaintiffs’ browsing software; the Stored Communication Act does not protect information stored on personal devices; and plaintiffs' allegations regarding the "value" of their personal information did not satisfy the $5,000 loss threshold in the Computer Fraud and Abuse Act. This is the first time many of these issues have been addressed at the federal appellate level.
In October 2013, the U.S. District Court for the District of Delaware granted the defendants' joint motion to dismiss, in part because the court agreed with Venable and the other defendants' counsel that plaintiffs had failed to allege that the cookies on their devices caused any cognizable injury.
The case is In Re: Google Inc. Cookie Placement Consumer Privacy Litigation. The Venable litigation team was led by New York-based Ed Boyle and David Cinotti, with assistance from Privacy and Data Security lawyer Julia Kernochan Tama. Stu Ingis and Milo Cividanes, co-chairs of Venable’s Privacy and Data Security team, were also involved.
Other defendants are represented by Ropes & Gray and Wilson, Sonsini, Goodrich & Rosati.