Hulu Privacy Class Action Lawsuit Denied Class Certification

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UPDATE: The Hulu privacy class action lawsuit was dismissed by a California federal judge on March 31, 2015. The plaintiffs filed an appeal on April 15, 2015.

UPDATE 2: On Oct. 23, 2015, both parties voluntarily agreed to drop the appeal to the Hulu video privacy class action lawsuit

The Hulu privacy class action lawsuit has been hit with a setback after a California federal judge denied class certification on Monday, finding that the class was not ascertainable. The class action lawsuit accuses Hulu LLC of wrongfully disclosed viewers’ personal identification information to third parties in violation of the Video Privacy Protection Act (VPPA).

Hulu is a service provides on-demand, online access to movies, television shows and other prerecorded content through its website. While it offers a limited free service, it also offers a paid service called Hulu Plus that grants members access to more content. The Hulu privacy class action lawsuit alleged Hulu wrongfully disclosed users’ viewing selections and personal identification information to third parties including comScore and Facebook in violation of the VPPA. The VPPA makes it illegal for “video tape service providers” to knowingly disclose consumers’ personal identification information to third parties except in specific situations that are not relevant to the Hulu privacy lawsuit.

The plaintiffs sought certification of a Class of U.S. residents who, from April 21, 2010 through June 7, 2012, were registered Hulu users and Facebook members and who requested and/or obtained video content from www.hulu.com during the Class Period. At a May hearing, the plaintiffs limited their theory to disclosures of identifying information that involved the “c_user” cookie, which contains logged-in Hulu users’ Facebook IDs.

On Monday, U.S. District Judge Laurel Beeler denied the plaintiffs’ request to certify the Hulu privacy class action lawsuit, finding that not all Hulu users were equally affected by the alleged VPPA violations. Although information was sent from Hulu to Facebook via the c_user cookie, these cookies were allegedly not sent in all cases. For example, if a Hulu user used ad-blocking software, logged out of Facebook, cleared their cookies or used different web browsers for Hulu and Facebook, their Hulu content-viewing history would not be shared with Facebook. The judge found that despite these differences, the plaintiffs had adequately alleged the same claim of wrongful disclosure of their Hulu content-viewing history to Facebook.

However, Judge Beeler found that it was nearly impossible to determine which Hulu users would be legitimate members of the Hulu class action lawsuit. Even if Hulu violated the VPPA, the violations wouldn’t affect the Hulu users who took measures to prevent the tracking of their personal data. “Plaintiffs have offered no way to identify individual Class Members other than broad notice and a self-reporting affidavit,” the judge wrote.

Because the VPPA allows for damages of $2,500, Judge Beeler expressed concern that potential Class Members would have an incentive to lie. “The incentive and the vagaries of subjective recollection makes this case different than the small-ticket consumer protection class actions that this district certifies routinely,” the judge wrote.

“Whether these issues could be resolved by narrowing the Class definition, by defining subclasses, by reference to objective criteria, by a damages analysis that addresses pecuniary incentives, or otherwise, the undersigned cannot tell,” Judge Beeler wrote in her decision to deny certification of the Hulu privacy class action lawsuit. “But on this record, Plaintiffs have not defined an ascertainable Class.”

Because Judge Beeler denied Class certification without prejudice, the plaintiffs will have an opportunity to file another amended Hulu privacy class action lawsuit.

Top Class Actions will continue to provide updates on the Hulu privacy class action lawsuit as they’re made available. Keep checking TopClassActions.com or sign up for our free newsletter for the latest updates. You can also mark this article as a “Favorite” using your free Top Class Actions account to receive notifications when this article is updated.

The plaintiffs are represented by Joseph H. Malley of the Law Offices of Joseph H. Malley, David C. Parisi and Suzanne Havens Beckman of Parisi & Havens LLP; Scott A. Kamber, David A. Stampley and Grace E. Tersigni of KamberLaw LLC; and Brian R. Strange and Gretchen Carpenter of Strange & Carpenter.

The Hulu Privacy Class Action Lawsuit is In re: Hulu Privacy Litigation, Case No. 3:11-cv-03764, in the U.S. District Court for the Northern District of California.