Yet another online privacy class action bit the dust on standing grounds on Wednesday. This time around, Google Inc. and its lawyers at Wilson Sonsini Goodrich & Rosati dodged claims that Google illegally monitored users of the popular Web browsers Safari and Internet Explorer.
In a 24-page ruling, U.S. District Judge Sue Robinson in Delaware dismissed allegations that Google tricked Web surfers into accepting “third-party cookies” — code that remembers whether you’ve visited a website before and helps advertisers target their ads. Robinson ruled that there’s no indication that users of Safari and Internet Explorer suffered an economic injury.
In February 2012, a Stanford University researcher published findings that Google had overridden the default privacy settings on Safari, an Apple Inc. browser that’s known for blocking third-party cookies. Microsoft later revealed that Google similarly bypassed privacy settings on Microsoft’s Internet Explorer product. Google quickly apologized. It chalked the override up to a technical glitch, and insisted that it didn’t mean to show users targeted ads. The company paid a $22.5 million fine to the Federal Trade Commission in August 2012.
Plaintiffs law firms like Seeger Weiss and Kaplan Fox & Kilsheimer quickly filed 24 class action lawsuits on behalf of Safari and Internet Explorer users. The complaints alleged violations of state unfair competition laws as well as violations of federal statutes like the Electronic Communications Privacy Act. The cases were consolidated before Robinson last year.
Google’s lawyers at Wilson Sonsini moved to dismiss the MDL in January, arguing that “there is no Article III injury where a plaintiff makes nothing more than general allegations that the value of his or her ‘personal information’ was diminished by its collection and use.” That’s been a very popular and very effective defense tactic in online privacy class actions, as Forbes explained here. In a motion opposing dismissal, members of the plaintiffs’ steering committee argued that there’s a bustling marketplace for data about Web users, so the theft of personal data is clearly an economic injury.
Robinson left no doubt as to which side she thought had the better argument. “[W]hile the plaintiffs have offered some evidence that the online personal information at issue has some modicum of identifiable value to an individual plaintiff, plaintiffs have not sufficiently alleged that the ability to monetize their [personal information] has been diminished or lost,” she wrote.
Wilson Sonsini’s Michael Rubin, who represented Google, did not immediately return a call seeking comment. We also didn’t immediately hear back from Stephen Grygiel of the firm Keefe Bartels, a lawyer for the class.