Viacom/Google Internet Tracking MDL Dismissed

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Last week, multidistrict litigation accusing Google Inc. and Viacom Inc. of tracking minor’s internet activities was dismissed.

Plaintiffs alleged in multiple class action lawsuits filed in January of 2013 that Google and Viacom violated federal and state laws by installing “cookies” on users’ computers, including for minors who indicated they were under 13 years old during sign-up processes on Nickelodeon websites. The cookies allegedly tracked the Internet and video-viewing activities of the minors for the purpose of targeting advertisements to the children. The class action lawsuits were consolidated into multidistrict litigation (MDL) in the summer of 2013.

In October, Google and Viacom fired back, filing separate motions to dismiss the MDL in October of 2014 arguing that the plaintiffs’ pleadings were flawed.

On Jan. 20, U.S. District Judge Stanley R. Chesler issued an order agreeing with Google and Viacom dismissing the consolidated class action lawsuit with prejudice. Judge Chesler wrote in his unpublished order that the plaintiffs had not established how the information that Viacom and Google allegedly collected through websites aimed at children could be used to piece together personal information about a user.

“Even if the Court were to consider what Google could do with the information, rather than the nature of the information itself, Plaintiffs’ claim would still fail because it is entirely theoretical,” wrote the judge. “It appears that Google would not even allow a child under the age of 13 to register for its services, which would rule out the entire class of plaintiffs, all of whom are under that age,” Judge Chesler continued.

Judge Chesler also wrote in his opinion that he doubted whether the New Jersey law even applied to the MDL, saying that the plaintiffs were trying to “fit square pegs into round holes.” He explained that simply being able to monetize user’s Internet usage, as alleged by the plaintiffs, did not amount to unjust enrichment or quasi-contract violations by Google and Viacom.

Judge Chesler had asked the plaintiffs to replead their Video Privacy Protection Act claim against Viacom along with their New Jersey Computer Related Offenses Act and common law intrusion upon seclusion claims against both companies in July. In his order, Judge Chelser found the amended pleadings inadequate. “Despite the new semantics, plaintiffs are pointing to the same exact concept in an attempt to satisfy the damages requirement,” he wrote.

The plaintiffs’ common law privacy claims also failed. Judge Chesler found that the plaintiffs’ use of polls showing the collection of monetization of online activities did not establish that the use of that data was offensive. “A large majority of voters may disapprove of a given politician’s job performance,” wrote the judge in comparison, “but that would not indicate that a reasonable person finds the politician’s performance ‘highly offensive,’” he continued.

The plaintiffs are represented by Barry R. Eichen and Evan J. Rosenberg of Eichen Crutchlow Zaslow & McElroy LLP and James P. Frickleton, Mary D. Winter, and Edward D. Robertson III of Bartimus Frickleton Robertson & Goza PC.

The Viacom/Google Internet Tracking MDL is In re: Nickelodeon Consumer Privacy Litigation, MDL No. 2443, in the U.S. District Court for the District of New Jersey.