WSJ Consumer Tracking Class Action Dismissed by Judge

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On Jan. 23, a proposed consumer tracking class action lawsuit filed against Dow Jones and Co. was dismissed with prejudice by the presiding Georgia federal judge, ruling that the machine numbers allegedly gathered by company do not count as personally identifiable information.

The consumer tracking lawsuit alleged that Dow Jones and Co. violated the Video Privacy Protection Act (VPPA) by collecting and distributing personal information to third parties from consumers who use Dow’s free Wall Street Journal Channel (WSJ) app on the popular Roku TV device.

In choosing to dismiss the WSJ consumer tracking class action lawsuit, U.S. District Judge Mark Cohen agreed with Dow Jones that the plaintiff cannot claim that the company violated the VPPA based solely the alleged distribution of the Roku serial number. Without proof of Dow Jones’ distribution of other personal information besides the serial number and videos watched, which do not qualify as personally identifiable information (PII) under VPPA definition, the plaintiff cannot claim relief under the statute.

Plaintiff Terry Locklear originally filed this WSJ class action lawsuit in March of last year, claiming Dow Jones disclosed the serial number for her Roku device and the titles of the videos she watched to third party analytics company mDialog. Based on this information, Locklear claims mDialog was able to identify her.

In May, Dow Jones submitted a motion to dismiss the consumer tracking class action lawsuit, arguing that Locklear’s claims failed to meet the standards required to file a Video Privacy Protection Action violation because “Plaintiff’s anonymous Roku serial number and video viewing histories, without more, are not PII,” according to the WSJ class action lawsuit.

However, although Locklear “alleges that using this information mDialog was able to identify her and attribute her video records,” she also admitted “that mDialog did so ‘once equipped with the demographic data linlced to a Roku serial number (either by receiving the information from Roku itself or other sources,)’” according to the consumer tracking class action lawsuit.

It was this admission that Judge Cohen deemed “fatal” to the proposed WSJ consumer tracking class action lawsuit, because it demonstrated that mDialog had to take independent steps beyond the serial number provided by Dow Jones in order to match and identify Locklear and other WSJ consumers to their Roku devices.

Judge Cohen based his ruling on a 2014 VPPA class action lawsuit against Hulu LLC, which claimed the company violated the VPPA by sharing Hulu users’ personal information to third parties like Facebook and comScore, as well two additional ruling regarding similar VPPA violation class action lawsuits involving Cartoon Network.

In the Hulu case, the presiding judge ruled that the unique IDs shared by Hulu to comScore for analytic purposes did not violate VPPA statutes because they were linked to a device, not an individual, and because these IDs were presented to the third party in an aggregate and generalized form.

Similarly in the Cartoon Network class action lawsuit, the presiding judge in this court ruled that a user’s video history and Android ID did not count as PII, because the third party data analytics company who received this information from Cartoon Network had to take extra steps to link this information with a specific user.

Locklear has been barred from bringing her claims back to federal court, as she has previously submitted amended complaints for her WSJ consumer tracking class action lawsuit. According to Judge Cohen any further amendments would be futile because the viewing history and Roku serial numbers are not considered PII by the court or by VPPA law.

The plaintiff is represented by Jennifer Auer Jordan of The Jordan Firm LLC and Jay Edelson, Rafey S. Balabanian, James Dominick Larry and Benjamin H. Richman of Edelson PC.

The WSJ Consumer Tracking Class Action Lawsuit is Locklear v. Dow Jones & Co. Inc., Case No. 1:14-cv-00744, in the U.S. District Court for the Northern District of Georgia.