Facebook Asks Judge to End Internet Tracking Class Action Lawsuit

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Facebook Inc. urged a California federal judge to dismiss a consolidated class action lawsuit that accuses the social media giant of tracking users’ Internet activity even after they logged out of the Facebook service.

On Thursday, Facebook asked U.S. District Judge Edward J. Davila to dismiss the privacy class action lawsuit because the plaintiffs failed to show that they’ve actually been injured. Therefore, Facebook argues, the plaintiffs do not have standing to bring the litigation and the case should be thrown out.

Facebook contends that the Internet tracking class action lawsuit “does not include any allegations of particularized harm required to establish standing, and Plaintiffs’ theory that standing is established when any violation of state law is asserted has been explicitly rejected by the Ninth Circuit.”

The Facebook tracking class action lawsuit was filed in 2012 by a group of Facebook users who accused the social media giant of invading their privacy by tracking their movements online. They claim that Facebook used cookies to track users who viewed webpages with Facebook “Like” or “Share” buttons even when they were logged out of their accounts. The plaintiffs sought $15 billion in damages.

The consolidated class action lawsuit asserts that Facebook violated the federal Wiretap Act and Stored Communications Act, as well as California consumer protection laws and several common law claims. The plaintiffs sought to represent Facebook users who had active accounts between May 2010 and September 2011.

Facebook has repeatedly sought to dismiss the privacy class action lawsuit but its efforts to end the litigation have been unsuccessful so far. In October 2012, Facebook filed a motion to dismiss the case due to the plaintiffs’ failure to allege an injury.

In October 2015, Facebook did succeed in getting the litigation dismissed. However, Judge Davila allowed the plaintiffs to file an amended complaint. The judge found that the plaintiffs adequately argued that their information had value, but they hadn’t been successful in showing how that value was diminished when it was collected by cookies and sent to Facebook.

In its latest effort to wash its hands of the user tracking class action lawsuit, Facebook again argues that the plaintiffs haven’t shown that they were injured by the social network’s tracking, and that they hadn’t presented any specific URL that was improperly obtained by the company.

“Because Plaintiffs sent referrer URLs to Facebook whenever Plaintiffs visited a webpage that contained Facebook content, Facebook’s receipt of this information cannot be (i) an ‘interception’ under the Wiretap Act, (ii) improper ‘access’ of information in ‘electronic storage’ under the SCA, (iii) ‘without permission under Penal Code § 502, (iv) ‘unlawful access,’ as required for trespass, or (v) ‘theft,’ as required for larceny,” Facebook argues. “Nor does a user have a reasonable expectation of privacy in such information, as numerous courts have held.”

Facebook asked the judge to dismiss the user tracking class action lawsuit with prejudice, which would prevent the plaintiffs from filing another amended complaint.

The plaintiffs are represented by Paul R. Kiesel of Kiesel Law LLP, James P. Frickleton of Bartimus Frickleton Robertson & Goza PC, Stephen G. Grygiel of Silverman Thompson Slutkin & White LLC and David A. Straite of Kaplan Fox & Kilsheimer LLP.

The Facebook Tracking Class Action Lawsuit is In re: Facebook Internet Tracking Litigation, Case No. 5:12-md-02314, in the U.S. District Court for the Northern District of California.

UPDATE: On June 10, 2016, Facebook vigorously defended its motion to dismiss a $15 billion MDL over its purported use of cookies to track users’ internet activities, saying the users amended complaint still fails to show economic harm.