Magistrate Judge Laurel Beeler, Northern District of California
Magistrate Judge Laurel Beeler, Northern District of California (Jason Doiy / The Recorder)

SAN FRANCISCO — With eye-popping damages at stake, a federal judge has refused to allow plaintiffs to move forward as a class with claims that Hulu violated their privacy by sharing the videos they viewed.

In a 38-page order issued Tuesday, U.S. Magistrate Judge Laurel Beeler dismissed without prejudice plaintiffs’ motion to certify a class of Hulu users. Plaintiffs filed their claims under the Video Privacy Protection Act, a 1980s law that provides for statutory damages of $2,500 per violation. Hulu had warned the court that it might have to pay billions in damages if a class were certified.

Without a detailed proposal for verification from the plaintiffs, Beeler concluded that she would likely have to rely on self-reporting to determine who belonged in the class. She insisted that class members should be subjected to greater scrutiny before cashing in on such a large award.

“The claims apparently are not amenable to ready verification,” she wrote. “And at $2,500 per class member, they are not small.”

Beeler seconded Hulu’s concerns that the handsome damages at stake could entice Hulu users to try to join the class, regardless of whether their privacy had been violated.

“That incentive and the vagaries of subjective recollection make this case different than the small-ticket consumer protection class actions that this district certifies routinely,” she wrote.

Hulu lawyer Robert Schwartz of O’Melveny & Myers declined to comment on the order, and a spokesman for the video-streaming site did not respond to a request for comment. Plaintiffs lawyer Scott Kamber of New York’s KamberLaw said plaintiffs still hope to proceed as a class.

“Plaintiffs appreciate Judge Beeler’s thoughtful opinion, which we are continuing to review in detail,” he said. “We have every intention of taking any additional discovery that may be necessary and following the decision in order to renew our motion for class certification.”

Plaintiffs in In re Hulu Privacy Litigation, 11-3764, claimed that Hulu trampled their right to privacy by sharing the titles of videos they viewed on the site with Facebook and data analytics firm comScore. The VPPA was enacted by Congress in 1988 after a newspaper published a list of videos rented by U.S. Supreme Court nominee Robert Bork.

Ruling on Hulu’s motion for summary judgment in April, Beeler found that Hulu was not liable for sharing information with comScore but refused let the company off the hook for information it shared with Facebook.

Hulu installed a Facebook “like” button on its video pages in 2010. But even if a user didn’t click on the button, Hulu sent the title of the video and other information back to the social networking company, according to plaintiffs.

Beeler noted that many people block or delete cookies, meaning the court would have to launch a complex inquiry to determine which Hulu users had actually been harmed.

“Objective criteria … are important to establishing class membership as opposed to relying only on potential members’ say so and subjective memories that may be imperfect,” Beeler wrote.

Subclasses might address the issue, but plaintiffs had not proposed any tools for narrowing down the pool, she added.

Plaintiffs limited their potential damages haul somewhat by seeking just one violation per class member. Still, Hulu argued that it could invoke the due process clause if the court found it must pay billions for sharing viewers’ information. The concern seemed to resonate with Beeler.

“That award is wildly disproportionate to any adverse effects class members suffered, and it shocks the conscience,” Beeler wrote.

Contact the reporter at jlove@alm.com.