220 F.Supp.2d 4 (D.Mass. 2002), Civ. A. 00-11672, In re Pharmatrak, Inc. Privacy Litigation
|Docket Nº:||Civ. A. 00-11672|
|Citation:||220 F.Supp.2d 4|
|Party Name:||In re Pharmatrak, Inc. Privacy Litigation|
|Case Date:||August 13, 2002|
|Court:||United States District Courts, 1st Circuit, District of Massachusetts|
Seth R. Lesser, Bernstein, Litowitz, Berger & Grossman, New York City, Dennis Stewart, Alan M. Mansfield, Milberg Weiss Bershad Hynes & Lerach, San Diego, CA, Douglas G. Thompson, Finkelstein, Thompson & Loughran, Washington, DC, Stephen Moulton, Nancy F. Gans, Moulton & Gans, LLP, Boston, MA, Ann D. White, Mager & White, Jenkintown, PA, Andrew M. Gschwind, Bernstein Litowitz Berger & Grossmann, New York City, Marvin A. Miller, Miller Faucher and Cafferty LLP, Chicago, IL, Shannon P. Keniry, Finkelstein Thompson & Loughran, Washington, DC, Louis Gottlieb, Goodkind Labaton Rudoff & Sucharow, New York City, George E. Barrett, Barret Johnston & Parsley, Nashville, TN, William J. Doyle, II, Milberg Weiss Bershad Hynes & Lerach LLP, Brian J. Robbins, Robbins Umeda & Fink LLP, San Diego, CA, Bryan L. Clobes, Philadelphia, PA, Daniel W. Krasner, Wolf, Haldenstein, Adler, Freeman & Herz, New York City, Adam J. Levitt, Wolf, Haldenstein, Adler, Freeman & Herz, LLC, Chicago, IL, Michael M. Buchman, Schaumburg, IL, for Plaintiffs.
Carmela Edmunds, Dickstein, Shapiro & Morin, Washington, DC, Richard F. O'Malley, Sidley & Austin, New York City, Mark C. Laredo, Mark D. Smith, Faxon & Laredo, Matthew H. Feinberg, Matthew A. Kamholtz, Feinberg & Kamholtz, Boston, MA, James T. Ardin, Sidley & Austin, New York City, Adam J. Levitt, Wolf, Haldenstein, Adler, Freeman & Herz, LLC, Chicago, IL, Seymour Glanzer, Dickstein, Shapiro, Morin & Oshinsky, LLP, David N. Sonnenreich, The Sonnenreich Law Office, P.C., Salt Lake City, UT, Daniel S. Savrin, Bingham, Dana & Gould, Boston, MA, Dennis J. Block, H. Peter Haveles, Jr., Cadwalader, Wickersham & Taft, New York City, John J. Curtin, John J. Curtin, Jr., Bingham, McCutcheon L.L.P., Boston, MA, Paul A. Hemmersbaugh, Sidley & Austin, Washington, DC, Donald N. David, Fishbein, Badillo, Wagner & Harding, Boston, MA, Ralph T. Lenore, Holland & Knight LLP, Boston, MA, Deborah E. Barnard, Ralph T. Lepore, III, Elizabeth Marlene Mitchell, Holland & Knight LLP, Boston, MA, Frederic W. Yerman, Paul C. Llewellyn, Kay, Scholer, Fierman, Hayes & Handler, New York City, William F. Lee, David B. Bassett, Douglas J. Nash, Hale & Dorr, Boston, MA, Daniel J. Tomasch, Diana Weiss, Orrick, Herrington & Sutcliffe LLP, New York City, for Defendants.
TAURO, District Judge.
Plaintiffs Rob Barring, Noah Blumofe, Jim Darby, Karen Gassman, Robin McClary, Harris Perlman, and Marcus Schroers ("Plaintiffs") bring this consolidated action against Pharmatrak, Inc. ("Defendant Pharmatrak") 1 and several pharmaceutical companies: Pfizer, Inc., Pharmacia Corporation, SmithKline Beecham Corporation, Glaxo Welcome, Inc., and American Home Products Corporation (the "Pharmaceutical Defendants"). The Consolidated Amended Class Action Complaint alleges that Defendants secretly intercepted and accessed Plaintiffs' personal information and Web browsing habits
through the use of "cookies" and other devices, in violation of state and federal law.
The Parties' cross-motions for summary judgment are now before the court.
Plaintiffs Blumofe and Gassman filed suit in this court on August 18, 2000. The remaining Plaintiffs filed complaints in the Southern District of New York. On April 18, 2001, the Judicial Panel on Multi-District Litigation issued an order transferring the six New York actions to the District of Massachusetts.
Plaintiffs filed the Amended Consolidated Class Action Complaint ("Complaint") on June 28, 2001. In December 2001, the court held a scheduling conference and authorized the Plaintiffs to examine Defendant Pharmatrak's computer servers. This limited discovery took place during December 2001 and January 2002 at Pharmatrak's former corporate headquarters in Boston, Massachusetts.
Pursuant to the court's March 26, 2002 Order, the Parties refiled motions for summary judgment. The court held a hearing on Defendants' and Plaintiffs' motions for summary judgment on July 24, 2002.
Plaintiffs allege that Defendants "secretly intercepted and accessed Internet users' electronic communications with various health-related and medical-related Internet Web sites and secretly accessed their computer hard drives in order to collect private information about their Web browsing habits [and] confidential health information without their knowledge, authorization, or consent." 2 Plaintiffs contend that the Pharmaceutical Defendants conspired with Plaintiff Pharmatrak to "collect and share this wrongfully obtained personal and sensitive information." 3 This activity was allegedly accomplished through the use of "web bugs," "persistent cookies," and other devices. 4
The general principles of computers, the Internet, and the Web have been detailed elsewhere, 5 and because such facts are undisputed in this case, further elaboration is unnecessary. Analysis of the Parties' relationships in this case, however, requires a brief discussion of the specific methods by which the Parties communicated with each other, and the manner in which Defendants allegedly accessed and intercepted private information.
As stated in the Complaint, the Plaintiffs "access the Internet and communicate with other computers through use of commercial ISPs ... or through computers known as 'servers' that are operated by the entity which provides their computer access, such as their employer. In each case, the ISP or the server provides the electronic communication service that allows the user's computer to connect with other computers on the Internet." 6 Plaintiffs assert that personal computers "can and sometimes do act as servers," 7 but do
not allege that any of the named Plaintiffs' computers were used in such a capacity.
The Pharmaceutical Defendants hired Defendant Pharmatrak to monitor their corporate web sites and provide monthly analysis of web site traffic. 8 Pharmatrak offered its clients two relevant products: NETcompare, which was designed to monitor activity across clients' web pages, and DRUG compare, which was designed to monitor activity across disease categories and drug product pages. 9 All of the Pharmaceutical Defendants purchased NETcompare, and Defendant Pharmacia may have licensed DRUG compare during testing phases. 10 Pharmatrak specifically represented to the Pharmaceutical Defendants that these products did not collect "personally identifiable information." 11 Even though the Pharmaceutical Defendants may not have known precisely how Pharmatrak's software worked, Plaintiffs readily admit that "the Pharmaceutical Defendants did authorize Pharmatrak's presence upon their Web sites ...." 12
Having caused the user's Internet browser to contact Pharmatrak, Pharmatrak then sent a cookie back to the browser. 22 A cookie is an electronic file "attached" to a user's computer by a computer server. Plaintiffs concede that "[c]ookies generally perform many convenient and innocuous functions." 23 Commonly, cookies are used
to store users' preferences and other information, which allows users to easily access and utilize personalized services on the web or to maintain an online "shopping cart." 24 Cookies also allow web sites to differentiate between users as they visit by assigning each individual browser a unique, randomly generated numeric or alphanumeric identifier. 25 If an individual browser had already visited the "Pharmatrak-enabled" website, Pharmatrak would recognize the previously placed cookie and could therefore differentiate between a repeat visit and an initial visit. 26 Pharmatrak programmed its cookies to expire after 90 days. 27 It is possible that many individual users were unaware that, in addition to their browser communicating with a Pharmaceutical Defendant's web site, it was also communicating with Pharmatrak. 28
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