New Jersey’s federal court will be the venue for suits from around the U.S. claiming Google and Viacom use web cookies to illegally track online activities of children under 13.
The Judicial Panel on Multidistrict Litigation on Tuesday assigned the cases, consolidated as In re: Nickelodeon Consumer Privacy Litigation, MDL No. 2443, to U.S. District Judge Stanley Chesler in Newark.
The suits, filed in California, Illinois, Missouri, New Jersey, Pennsylvania and Texas, are on behalf of minors who visit Viacom websites with games and videos aimed at children, such as Sponge Bob Square Pants and Dora the Explorer. Visitors to nick.com, nickjr.com and neopets.com are invited to create user accounts.
The user’s birthdate is among the data requested for creating an account, but although Viacom consequently knows which users are under 13, it makes no effort to notify parents or seek their permission, the plaintiffs allege.
The websites place a tracking cookie on the computer of each visitor, laying a trail of usage that can be used to sell online ads targeting children, according to the plaintiffs.
The suits assert counts of Wiretap Act violations, intrusion upon seclusion, and unjust enrichment by both defendants. Viacom is also alleged to have violated the Video Privacy Protection Act, which contains heightened protections for people under 13. They seek actual, statutory and liquidated damages as well as attorney fees and costs under the Wiretap Act.
The plaintiffs wanted the cases moved to the Northern District of California because Google is based in Mountain View, Calif., but the defendants requested New Jersey because of proximity to Viacom’s headquarters in New York.
In choosing New Jersey, the JPML cited the district’s resources and capacity to handle multidistrict litigation, Chesler’s prior experience handling such litigation, and the proximity to potential witnesses and evidence in New York.
The suits seek certification of a class of children under 13 who accessed the three websites and whose computers received tracking cookies from Viacom and Google, and a subclass of children under 13 who accessed videos from the websites and received cookies.
Plaintiff lawyer Barry Eichen, of Eichen, Crutchlow, Zaslow & McElroy in Edison, says he expects the class to exceed 100,000 members. "These cases are huge," he says. "How [they] go is going to affect how closely we can be monitored by corporate America."
Last December, Eichen filed the complaint in CAF and CTF v. Viacom, Inc., 12-cv-7829, but in February, Chesler stayed the proceedings pending the JPML’s action.
Grayson Barber, a Princeton solo and privacy advocate, says online collection of personal information from children under 13 is regulated by the Federal Trade Commission under the Children’s Online Privacy Protection Act. "Very clearly it’s illegal to collect information from children without permission from their parents and it’s very clearly illegal to do it surreptitiously," she says.
But the statute does not create a private cause of action, Barber notes.
Spokespeople for Google and Viacom did not respond to requests for comment.