Court Hears New Arguments to Dismiss Google Safari Tracking Class Action Lawsuits

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Court Hears New Arguments to Dismiss Google Safari Tracking Class Action Lawsuits

By Matt O’Donnell

UPDATE: A federal judge granted Google’s motion to dismiss the Safari tracking class action lawsuit on October 9.

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.

Defendants in the Google Safari tracking class action lawsuit continue to urge the court to dismiss the multidistrict litigation, arguing that consumers were not harmed – and cannot prove how they were harmed – by having tracking cookies placed on their computers.

In separate motions last week, online advertising companies Vibrant Media Inc. and Media Innovation Group LLC moved to dismiss the MDL, which consists of 24 consolidated class action lawsuits alleging Google Inc. secretly installed a code that allowed it to bypass default privacy settings designed by Apple Inc. to prevent advertisers and other third parties from tracking the Internet browsing activities of Safari users.

Plaintiffs in the consolidated MDL, known as In re: Google Inc. Cookie Placement Consumer Privacy Litigation, accuse the defendants of violating the federal Wiretap Act, the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and other laws.

Vibrant Media and Media Innovation argued the MDL should be axed because the plaintiffs cannot demonstrate how they were injured from the tracking cookies, which they say are both harmless and necessary for the Web to function.

“Cookies are not like listening devices that can be accessed and transmit information to whomever happens to be on the other side,” Vibrant said in the motion, explaining that cookies merely increase the efficiency of Internet communication by creating a memory of communication between a specific computer and a Web server.

Media Innovation said the Google cookie tracking MDL is simply the latest in a long line of class action lawsuits seeking to make a federal case out of “harmless cookies.”

“The plaintiffs in this case, despite their best efforts to paint routine commercial behavior in a nefarious light, allege no facts supporting an inference that their legal rights were violated or that they suffered any economic loss or were otherwise affected in any way by the alleged cookie-setting,” Media Innovation said.

Google has made similar arguments in its multiple attempts to dismiss the MDL, arguing that the plaintiffs were not harmed by the alleged spying and therefore lacked standing.

“These lawsuits invariably seek windfall recoveries under esoteric and inapplicable statutes regardless of whether anyone suffered any actual injury,” Google said in a January motion.

Safari users, however – and even the Federal Trade Commission – disagree. The FTC filed contempt charges against Google last summer for violating a 2011 consent decree banning it from misrepresenting its privacy settings. Google was ordered to pay a record $22.5 million fine after the FTC found that Google’s circumvention of Safari’s privacy settings deceived users into believing Google would not place tracking cookies or serve targeted ads.

Dozens of class action lawsuits followed by Safari users who say Google tricked them into thinking Safari’s default no-tracking settings would block Google from installing third-party cookies.

The case is being closely followed by consumer privacy advocates to see how the court will rule. The outcome will likely affect pending and future class action lawsuits over Internet privacy.

The case is In re: Google Inc. Cookie Placement Consumer Privacy Litigation, MDL No. 02358, U.S. District Court for the District of Delaware.

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