Viacom, Google File Motions to Dismiss Internet Tracking MDL

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Google Inc. and Viacom Inc. each filed separate motions to dismiss the class action lawsuit alleging the companies illegally tracked Internet and video viewing activity of minors.

Parents sued Google and Viacom in January of 2013, accusing them in multiple class action lawsuits of violating 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 Internet tracking class action lawsuits were consolidated into multidistrict litigation (MDL) in New Jersey in the summer of 2013. U.S. District Court Judge Stanley Chesler dismissed some of the plaintiffs’ claims in July of this year, but allowed the plaintiffs to re-plead their claims that Google and Viacom violated the Video Privacy Protection Act (VPPA), the “intrusion upon seclusion claim” and their claims that the companies violated the New Jersey Computer Related Offenses Act.

The plaintiffs filed an amended class action lawsuit in September, and, on Tuesday, Viacom and Google filed documents with the court urging Judge Chesler to dismiss the re-pleaded claims in the class action MDL arguing that the modified pleadings still don’t establish that the companies violated federal video privacy or state wiretapping laws. The companies argue that the Video Privacy Protection Act, New Jersey Computer Related Offenses Act and common-law intrusion upon seclusion claims that the plaintiffs had been allowed to re-plead contained the “same fundamental flaws” that led to their original dismissal.

“None of them,” argues Viacom in its motion to dismiss the Internet tracking class action lawsuit, “states a claim because none of plaintiffs’ additional allegations fix the flaws that have characterized their pleadings from the outset.” Viacom also argued that the plaintiffs’ addition of allegations that it shared the anonymized DoubleClick cookie identifier with Google did not support the plaintiffs’ claim that the company had disclosed users’ identities and information about their video-viewing habits in violation of the VPPA.

“Even accepted as true, the DoubleClick cookie identifier is not alleged to be — or to contain — personally identifiable information,” Viacom pointed out in its motion to dismiss the class action lawsuit. “Nor is it alleged to be different in kind from the identifiers that the court already has held did not give rise to a VPPA claim in the context of the dismissed complaint,” Viacom continued.

Viacom also contended that the plaintiffs could not establish that minors under the age of 13 used Google accounts because use is limited to those over 13. “Having such accounts would be necessary for the purported combinations to occur or to amount to a VPPA disclosure,” Viacom argued in its motion to dismiss the Internet tracking class action lawsuit.

Google and Viacom urged the court to nix the New Jersey computer hacking claim, arguing that the plaintiffs had not heeded the court’s direction to show how the defendants’ acquisition and use of their personal information for marketing purposes had caused damage to their business or property.

Google and Viacom also argued that the plaintiff’s claims under the New Jersey Computer Related Offenses Act should be dismissed. “[The plaintiffs’ amended complaint] merely substitutes different words to say the same thing as in the original complaint,” contended Google in its motion to dismiss the class action lawsuit.

The companies also argued for dismissal of the plaintiffs’ intrusion upon seclusion claims because, according to the companies, the plaintiffs had yet to explain how the companies’ collection and monetization of online information would be “offensive to the reasonable person” or intentionally invade on the plaintiffs’ reasonable expectation of privacy as required by the common law.

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.

UPDATE: On Nov. 22, 2016, Viacom argued in New Jersey federal court that the last privacy claim in a class action lawsuit alleging Nickelodeon tracked the online activity of minor users should be dropped.