Safari Users Appeal Google Tracking Class Action Lawsuit Dismissal

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A group of Safari browser users are asking the Third Circuit Court of Appeals to reconsider its dismissal of a class action lawsuit against Google Inc. alleging that the internet giant tracked their internet activity despite privacy settings it had used on Apple Inc.’s internet browser, saying that the behavior by the advertisers was not “routine.”

The plaintiffs in the Google class action lawsuit want the multidistrict litigation (MDL) made up of 24 class action lawsuits against Google dismissed by the Delaware federal judge in October 2013 to be reinstated. The federal judge had argued that the plaintiffs lacked standing and did not claim an economic injury.

The Safari users argue in the brief filed Tuesday that Google wrongly claims that it was “routine” for the internet giant to hack its way through cookie-blocking settings that users employed via their internet browsers.

“Defendants argue that their surreptitious hacking of cookie-blocking settings was routine, non-controversial business activity,” the plaintiffs’ lawyers wrote in the class action lawsuit appeal.

The plaintiffs contend that the “defendants re-write the factual question to let them supply an innocuous answer.” However, the question they bring up is not what the plaintiffs are challenging.

“Plaintiffs are not challenging consensual use of tracking cookies,” they wrote. “Instead, plaintiffs challenge nonconsensual tracking.”

“Rather than being consensual, these cookies were designed by the defendants to hack their way around the privacy settings of plaintiffs’ chosen browsers that were specifically marketed and designed to block tracking cookies,” they argue.

“What the defendants characterize as ‘routine commercial behavior’ has been found otherwise,” the plaintiffs added.

The plaintiffs in the Google tracking class action lawsuit detail actions by the Federal Trade Commission (FTC) and state attorney generals against Google for allegedly going around users’ privacy settings to track their internet behavior.

“These acts resulted in the largest fine in Federal Trade Commission history, and the largest multi-state internet privacy settlement with state Attorneys General in history,” they explain.

In addition, the Safari users argue in their appeal of the dismissal that criminal provisions have been violated as well, and that there was no requirement given to the consumers in order to show the merits of their case to prove standing.

The plaintiffs allege that the Google violated the Consumer Fraud and Abuse Act, the Wiretap Act and the Electronic Communications Privacy Act.

They allege that Google is able to hack through Apple’s default privacy settings that it uses to track the internet behavior of Safari users for advertising purposes.

The advertisers were also included in the class action lawsuits including Vibrant Media Inc., Media Innovation Group LLC, and PointRoll Inc.

There was a non-monetary class action settlement agreement reached by PointRoll with the plaintiffs in September 2013.

The Safari Users are represented by James P. Frickleton, Edward D. Robertson, Jr., Mary D. Winter and Edward D. Robertson III of Bartimus Frickleton Robertson & Goza PC, Stephen G. Grygiel of private practice, Brian Russell Strange and Gretchen Carpenter of Strange & Carpenter and Charles Slanina and David L. Finger of Finger & Slanina LLC.

Google is represented by Michael H. Rubin and Anthony J. Weibell of  Wilson Sonsini Goodrich & Rosati.

Vibrant Media is represented by Travis Steven Hunter and Rudolf Koch of Richards Layton & Finger PA and Joeann E. Walker of Venable LLP.

Media Innovation Group is represented by Rodger Dallery Smith II of Morris Nichols Arsht & Tunnell LLP.

The Google Safari Tracking Class Action Lawsuit Appeal is In re: Google Inc. Cookie Placement Consumer Privacy Litigation, Case No. 13-4300, in the U.S. Court of Appeals for the Third Circuit.

UPDATE: On June 20, 2016, a settlement has been reached between Google and consumers in a multidistrict litigation claiming the technology giant used circumvented default privacy settings, which enabled tracking of users’ browsing activities without their consent.

UPDATE 2: The Google cookie tracking class action settlement is now open. See how your rights may be affected here.

UPDATE 3: On Dec. 20, 2016, an objector to Google’s $5.5 million class action settlement says the funds should go to Class Members, not third-party organizations.

UPDATE 4: On Aug. 6, 2019, a $5.5 million settlement resolving allegations that Google circumvented users’ privacy to secretly track their online activity was rejected the Third Circuit Court of Appeals.

UPDATE 5: On Jan. 3, 2020, Google users argued that a revised $5.5 million Google privacy class action settlement should be approved after the original settlement was dismissed by an appeals court.