In re Google Inc.

• Citation: 988 F.Supp.2d 434
• Decision Date: 09 October 2013
• Docket Number: MDL Civ. No. 12–2358–SLR
• Parties: In re: Google Inc. Cookie Placement Consumer Privacy Litigation
• Court: U.S. District Court — District of Delaware

988 F.Supp.2d 434

In re: Google Inc. Cookie Placement Consumer Privacy Litigation

MDL Civ. No. 12–2358–SLR

United States District Court, D. Delaware.

Filed October 9, 2013

Charles Slanina, Esquire and David L. Finger, Esquire of Finger & Slanina, LLC, Wilmington, Delaware. Liaison Counsel for Plaintiffs. Plaintiffs' Lead Counsel: Stephen G. Grygiel, Esquire of Keefe Bartels, LLC, James Frickleton, Esquire of Bartimus, Frickleton, Robertson & Gorny, P.C., and Brian Russell Strange, Esquire of Strange & Carpenter. Plaintiffs' Steering Committee: David Straite, Esquire of Kaplan, Fox & Klischeimer, L.L.P., Jonathan Shub, Esquire of Seeger Weiss LLP, Barry Eichen, Esquire of Eichen, Crutchlow, Zaslow & McElroy, LLP, William “Billy” Murphy, Esquire of Murphy, P.A., Mark Bryant, Esquire of The Bryant Law Center, PSC, and, Jay Barnes, Esquire of Barnes & Associates.

Michael H. Rubin, Esquire, Anthony J. Weibell, Esquire, and C. Scott Andrews, Esquire of Wilson Sonsini Goodrich & Rosati. Counsel for Defendant Google.

Susan M. Coletti, Esquire of Fish & Richardson P.C., Wilmington, Delaware. Counsel for Defendant PointRoll, Inc. Of Counsel: Alan Charles Raul, Esquire and

Edward R. McNicholas, Esquire of Sidley Austin LLP.

Kelly E. Farnan, Esquire, Rudolf Koch, Esquire, and Travis S. Hunter, Esquire of Richards, Layton & Finger, Wilmington, Delaware. Counsel for Defendant Vibrant Media Inc. Of Counsel: Edward P. Boyle, Esquire, David N. Dinotti, Esquire, and Joeann E. Walker, Esquire of Venable LLP.

Rodger D. Smith II, Esquire and Regina S.E. Murphy, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware. Counsel for Defendants Media Innovation Group, LLC and WPP pic. Of Counsel: Douglas H. Meal, Esquire and Lisa M. Coyle, Esquire of Ropes & Gray LLP.

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

On December 19, 2012, four named plaintiffs (“plaintiffs”) filed a consolidated amended complaint (“CAC”) in this multidistrict consolidated litigation against Google Inc. (“Google”), Vibrant Media, Inc. (“Vibrant”), Media Innovation Group LLC (“Media”), and WPP, plc (“WPP”), (collectively “defendants”), as well as PointRoll, Inc.¹ (D.I.46) On July 23, 2013, plaintiffs settled with PointRoll, Inc. (D.I.109) Plaintiffs allege that defendants “tricked” their Apple Safari (“Safari”) and/or Internet Explorer (“IE”) browsers into accepting cookies, which then allowed defendants to display targeted advertising.

Pending before the court are three motions to dismiss: Google's motion to dismiss the consolidated amended complaint (D.I.56); Vibrant's motion to dismiss for failure to state a claim (D.I.93); and Media and WPP's motion to dismiss for failure to state a claim (D.I.96). The court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1332(d), and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.

II. BACKGROUNDA. Parties

Google is a Delaware corporation with its headquarters at 1600 Amphitheatre Parkway, Mountain View, CA 94043. Google is a technology leader and also delivers relevant, cost-effective online advertising. (D.I. 46 at ¶¶ 14, 19) Vibrant is a Delaware corporation, headquartered in New York, New York. Vibrant is known for its in-text ads, which pop up in the text of articles on the web. (D.I. 46 at ¶¶ 16, 24) Media is a Delaware limited liability company headquartered in New York, New York. Media provides targeted online advertising. (D.I. 46 at ¶¶ 17, 25) WPP, a public limited company with its main offices in Dublin, Ireland, and London, United Kingdom, owns Media and describes itself as “the world leader in marketing communications services.” (D.I. 46 at ¶¶ 18, 26)

B. Factual Background

Internet “cookies” are used to track an individual's activities and communications on a particular website and across the internet.² Cookies are used in internet advertising to store website preferences, retain the contents of shopping carts between visits, and keep browsers logged into social networking services and webmail as individuals surf the internet. “First-party cookies” are set by the website the user is visiting at the time the cookie is set. “Third-party cookies” are placed on a user's device by a website other than the site the user is visiting at the time the cookie is set. (D.I. 46 at ¶¶ 38–39, 45–46) “[T]hird-party cookies are used by advertising companies to help create detailed profiles on individuals, including, but not limited to an individual's unique ID number, IP address, browser, screen resolution, and a history of all websites visited within the ad network by recording every communication request by that browser to sites that are participating in the ad network, including all search terms the user has entered. The information is sent to the companies and associated with unique cookies—that is how the tracking takes place.” ( Id. at ¶ 46)

“Every document has a unique ‘URL’ (Universal Resource Locator) that identifies its physical location in the Internet's infrastructure.” (D.I. 46 at ¶ 10 n.1) When a user requests a website, “the user's Safari browser starts by sending a GET request to the server which hosts the publisher's webpage,” to retrieve the data for display on the user's monitor. ( Id. at ¶ 85) Many websites will leave part of their webpage blank for third-party companies to insert advertisements. Upon receiving a GET request from a user seeking to display a particular webpage, the server for that webpage will respond to the browser, instructing the browser to send a GET request to the third-party company charged with serving the advertisements for that particular webpage. The third party receives the GET request and a copy of the user's request to the first-party website and responds by sending the advertisement to the user's browser which displays it on the user's device. ( Id. at ¶ 41)

Defendants used coding in advertisements to circumvent Apple's Safari browser's default blocker and deceive the IE browser into accepting third-party cookies. (D.I. 46 at ¶¶ 68–190) Google stopped only when caught and began removing the illicit cookies. ( Id. at ¶ 119) If users are logged-in to a Google account, Google is then able “to synchronize the ads with the particular user's personalized information,” allowing for targeted advertising. ( Id. at ¶ 89) This information includes the information provided by the user, defined by Google to include “information which you provide to us which personally identifies you, such as your name, email address or billing information, or other data which can be reasonably linked to such information by Google,” as well as address information and browsing history information. ( Id. at ¶ 98) One of the third-party cookies set by defendants assigned a unique ID to the user's computing device which allowed defendants to associate future information received to the unique ID. ( Id. at ¶¶ 78, 95, 150, 153–54)

III. ARTICLE III STANDING

Article III standing requires: “(1) an injury-in-fact ...; (2) a causal connection between the injury and the conduct complained of; and (3) that it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Winer Family Trust v. Queen, 503 F.3d 319, 325 (3d Cir.2007). To have standing, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Sierra Club v. Morton, 405 U.S. 727, 734–735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972))). “The actual or threatened injury required by Art. Ill may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates Standing....” SeeWarth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (citing Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)).

Plaintiffs cite to many articles to support their allegations that personally identifiable information (“PII”) has monetary value and is a commodity that companies trade and sell. (D.I. 46 at ¶¶ 49–67) Specifically, “[t]he cash value of users' personal information can be quantified,” with web browsing histories valued at $52 per year. ( Id. at ¶ 56) Plaintiffs also describe a company which calculates the value of a user's web activity. ( Id. at ¶ 66) Google offers users the opportunity to join a panel which allows Google to track the websites the user visits in exchange for gifts, such as gift cards to retailers. ( Id. at ¶¶ 57–60) Plaintiffs describe a company in the United Kingdom which offers users a real market for their personal information and a start-up company which “enables people to sell themselves to advertisers directly,” valuing user's data at $12 per year. ( Id. at ¶¶ 63–64)

District courts have been reluctant to equate loss of PII, without more, to injury in fact. For instance, in LaCourt v. Specific Media, Inc., No. 10–1256, 2011 WL 1661532 (C.D.Cal. Apr. 28, 2011), plaintiffs alleged that

they “are persons who have set the privacy and security controls on their browsers to block third-party cookies and/or who periodically delete third-party cookies,” and that they each had a “Flash cookie” installed on their computer by Specific Media without their notice or consent. Plaintiffs allege that they sought to maintain the secrecy and confidentiality of the information obtained by Defendant through the use of [local shared objects]. They further allege that “Defendant's conduct has caused economic loss to Plaintiffs and Class Members in that their personal information has discernable value, both to Defendant and to Plaintiffs and Class Members, and of which Defendant has deprived Plaintiffs and Class Members and, in addition, retained and used for its own economic benefit.”

Id. at *2. The district court found that plaintiffs did not “explain how they were ‘deprived’ of...