Garvey et al v. Kissmetrics et al

Filing 64

ORDER GRANTING IN PART, Defendant's Motion to Dismiss 49 as to Claims Two through Seven, ORDERING further briefing, and Setting Hearing on 49 MOTION to Dismiss First Amended, Consolidated Class Action Complaint : Motion Hearing set for 8/23/2012 11:00 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler.. Signed by Judge Laurel Beeler on 6/11/2012. (lblc1, COURT STAFF) (Filed on 6/11/2012)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division IN RE HULU PRIVACY LITIGATION No. C 11-03764 LB ____________________________________/ ORDER DISMISSING CLAIMS TWO THROUGH SEVEN, ORDERING FURTHER BRIEFING ON STANDING ONLY, AND SETTING FURTHER HEARING 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 I. INTRODUCTION 17 In this putative class action, viewers of Hulu’s online video content allege that Hulu wrongfully 18 disclosed their video viewing selections and personal identification information to third parties such 19 as online ad networks, metrics companies (meaning, companies that track data), and social networks, 20 in violation of the Video Privacy Protection Act, 18 U.S.C. § 2710. First Amended Consolidated 21 Class Action Complaint, ECF No. 37 at 18.1 Plaintiffs raised six other claims but elected not to 22 pursue them. See Opposition to Motion to Dismiss, ECF No. 58 at 6 n.1. Defendant Hulu moves to 23 dismiss under Federal Rule of Civil Procedure 12(b)(1) on the ground that Plaintiffs lack standing. 24 Hulu also argues that the court should dismiss under Rule 12(b)(6) for failure to state a claim 25 because (1) Hulu is not a “Video Tape Service Provider” and thus is not liable under the Act, (2) any 26 disclosures were incident to the ordinary course of Hulu’s business and not covered by the Act, and 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document. ORDER (C 11-03764 LB) 1 (3) Plaintiffs are not “consumers” within the meaning of the Act. Motion to Dismiss, ECF No. 49. 2 Following a hearing on June 7, 2012, and for the reasons stated below, the court dismisses claims 3 two, three, five, six, and seven without prejudice, and claim four with prejudice, orders further 4 briefing on the standing issue, and sets a further hearing for August 23, 2012, at 11:00 a.m. 5 II. PROCEDURAL HISTORY, LIVE CLAIMS, SUBJECT-MATTER JURISDICTION AND VENUE, AND ALLEGATIONS IN COMPLAINT 6 7 8 A. Procedural History On July 29, 2011, Plaintiffs Garvey and Tsan filed a complaint, and on September 2, 2011, they and 13. On September 14, 2011, Plaintiffs Couch, Garza, Jauregui, and Moncada filed a complaint 11 in the Central District of California in Couch v. Space Pencil et al., No. C 11-05606 LB, and the 12 For the Northern District of California filed an amended complaint, in Garvey v. Kissmetrics et al., No. C 11-03764 LB. See ECF Nos. 1 10 UNITED STATES DISTRICT COURT 9 case was transferred to this district on September 14, 2011. See Couch, 11-05606 LB, ECF Nos. 1 13 and 48. The Garvey and Couch complaints both named Space Pencil (doing business as 14 Kissmetrics) and Hulu as defendants, but the Plaintiffs voluntarily dismissed their claims against 15 Space Pencil, which remains a defendant in a related case. See Garvey, No. C 11-03764 LB, ECF 16 No. 31; Couch, No. 11-05606 LB, ECF No. 22; Kim v. Space Pencil, Inc., C 11-03796 LB. The 17 parties stipulated to, and the court ordered, the consolidation of the Garvey and Couch cases into this 18 consolidated action now captioned “In re Hulu Privacy Litigation.” ECF Nos. 38, 39. On February 19 15, 2012, Plaintiffs filed the pending First Amended Consolidated Class Action Complaint (“FAC”) 20 naming only Hulu as a defendant. ECF No. 37.2 The FAC defines the class period as March 4, 2011 21 to July 28, 2011 and defines a “Class” and a “Video Subclass:” (1) Class: “All individuals and 22 entities in the United States who visited during the Class Period;” and (2) Video Subclass: 23 “All individuals and entities in the United States who visited during the Class Period and 24 viewed video content.” Id. at 15, ¶¶ 96-97. 25 B. Live Claims 26 27 The FAC has seven claims: (1) knowing and unauthorized transmission of Class Members’ video viewing selections and personal identification information to third parties in violation of the Video 28 2 The caption still names Kissmetrics, but only Hulu is a defendant. ORDER (C 11-03764 LB) 2 1 Privacy Protection Act; (2) trespass to chattel in violation of state law; (3) wrongful access of data in 2 violation of California Penal Code § 502; (4) wrongful access of Class Members’ computers in 3 violation of 18 U.S.C. § 1030; (5) violations of California’s unfair competition law, codified in 4 California Business and Professions Code § 17200, et seq.; (6) violation of Class Members’ right to 5 privacy as codified in the California Constitution, Article I, section 1; and (7) negligent capture, 6 transmission, and sharing of Class Members’ personal information and publishing a misleading 7 privacy policy. Id. at 18-29. In their opposition to Hulu’s motion to dismiss, Plaintiffs elect not to 8 pursue claims two through seven: 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 Due to uncertainties in the state of the law regarding certification of a nationwide class under the California Consumer Legal Remedies Act and the California Unfair Competition Law, including the application of Mazza v. Honda Co., Inc, 666 F.3d 581 (9th Cir. 2012) and the resulting complications of a nationwide statutory class and potential state consumer subclasses, Plaintiffs elect, at this time, not to pursue these claims. Further, in light of Plaintiffs’ continuing investigation, through counsel, of certain underlying, common issues of fact regarding Plaintiffs’ claims for trespass to chattels, violations of the California Computer Crime Law, the Computer Fraud and Abuse Act, the California Constitution, and negligence claims, Plaintiffs elect not to pursue those claims at this time. Opposition, ECF No. 58 at 6 n.1. 15 In its reply, Hulu argues that this is abandonment that requires dismissal with prejudice. Reply, 16 ECF No. 60 at 5 (citing Green Desert Oil Grp. v. BP W. Coast Prods., No. C 11-02087 CRB, 2012 17 WL 555045, at *2 (N.D. Cal. Feb. 21, 2012); In re Facebook Privacy Litig., No. C 10-02389 JW, 18 2011 WL 6176208, at *2 n.5 (N.D. Cal. Nov. 22, 2011); In re TFT–LCD (Flat Panel) Antitrust 19 Litig., 586 F. Supp. 2d 1109, 1131 (N.D. Cal. 2008)). 20 Plaintiffs’ statement – that they “elect . . . at this time” not to pursue claims two through seven – 21 is equivocal and is not a concession on the merits of Hulu’s motion to dismiss. Cf. N.D. Cal. Civil 22 Local R. 7-3(b) (a party against whom a motion is directed must file a statement of nonopposition if 23 it does not oppose the motion). And it cannot be intended as a voluntary dismissal of the claims. Cf. 24 Fed. R. Civ. P. 41(a)(1) (plaintiff may voluntarily dismiss an action as opposed to only some claims 25 against a defendant); Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988) 26 (plaintiff may not use Rule 41(a) as a mechanism for dismissing only certain claims; instead, the 27 proper procedure is to amend the complaint). But the court holds, and Plaintiffs did not dispute at 28 the June 7 hearing, that Plaintiffs’ decision not to pursue these claims is abandonment of the claims ORDER (C 11-03764 LB) 3 1 in this federal action. 2 The question is whether this court should dismiss claims two through seven with or without 3 prejudice. The cases that Hulu cites to support a dismissal with prejudice generally involve 4 plaintiffs who apparently did not address a defendant’s motion to dismiss at all, and thus the court 5 deemed the claims abandoned and dismissed them with prejudice. See Green Desert Oil, 2012 WL 6 555045, at *2 (complaint alleged many breaches of contract; defendant moved to dismiss them all; 7 plaintiffs defended only three of the alleged breaches in their opposition); In re TFT-LCD (Flat 8 Panel) Antitrust Litig., 585 F. Supp. 2d at 1131 (defendant manufacturers, sellers, and distributors of 9 TFT-LCD flat panels moved to dismiss plaintiffs’ Pennsylvania common law antitrust claims on the plaintiffs’ opposition did not address the claim or defendants’ arguments); see also Jenkins v. 12 For the Northern District of California ground that Pennsylvania law did not authorize damages sustained from antitrust violations; 11 UNITED STATES DISTRICT COURT 10 County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (abandoned two claims by not raising 13 them in opposition to the County’s motion for summary judgment). 14 Hulu also cites In Re Facebook Privacy Litigation, which is similar. There, plaintiffs did not 15 address their Wiretap Act claim in their opposition to Facebook’s motion to dismiss that claim and 16 said at oral argument only that they intended to “reserve” their claims. 2011 WL 6176208, at *2 n.6. 17 The court found that vague statement insufficient given their blatant failure to respond to 18 Facebook’s motion. Id. Also, the court previously had given leave to amend. Id. at *6. 19 This situation is different, at least as to the California state claims. Plaintiffs are not maintaining 20 radio silence about their claims or ignoring Hulu’s opposition completely. Instead, they are not 21 certain that they can certify a nationwide class in a case that includes California state claims. Given 22 that federal policy favors determination of cases on the merits, the court cannot say on this record 23 that it should dismiss the state claims with prejudice. 24 The court’s inquiry is different with claim four, a federal claim that alleges wrongful access of 25 Class Members’ computers in violation of 18 U.S.C. § 1030. At oral argument, Plaintiffs offered no 26 reason why the court should not dismiss this claim with prejudice. And so the court does. 27 \\\ 28 \\\ ORDER (C 11-03764 LB) 4 1 C. Jurisdiction and Venue 2 The parties agree that venue is proper in this district. Joint Case Management Conference 3 Statement, ECF No. 48 at 1. The court has jurisdiction under 28 U.S.C. § 1331 because the case 4 involves a claim under a federal statute. 5 D. Allegations in Complaint Relevant to Remaining Federal Claim and Standing 6 1. Hulu’s Product 7 Hulu operates a website called that provides video content, both previously released 8 and posted and originally developed. ECF No. 37, ¶¶ 1, 52, 114. The programs include news, 9 entertainment, educational, and general interest programs. Id. ¶ 114. 2. Plaintiffs’ Use of 11 Plaintiffs and Class Members used their Internet-connected computers and browsers to visit 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 and view video content. Id. ¶¶ 1, 52. They were renters, purchasers, and/or subscribers of 13 goods and/or services from Hulu and so were consumers as defined in the Video Privacy Protection 14 Act. Id. ¶ 115. 15 3. Plaintiffs’ Interests 16 Plaintiffs value their privacy while web-browsing; they do not want to be tracked online; their 17 web browsing (including their viewing choices) involves personal information that is private; it is 18 their decision to disclose (or not) information when they view a web page; and they expect that the 19 websites they use and “the third parties utilized by those websites will not transmit code that 20 repurposes . . . software . . . to perform unintended functions, such as tracking and circumvention of 21 privacy protection[s]” in Plaintiffs’ software. See id. ¶¶ 15-28. 22 4. Hulu’s Alleged Unauthorized Tracking and Sharing of Users’ Video Viewing Details 23 Hulu allowed a metrics company called KISSmetrics to place code containing tracking 24 identifiers on Plaintiffs’ computers in the browser cache, Adobe Flash local storage, or DOM local 25 storage. Id. ¶¶ 30-32, 34-51, 69. This code allegedly “respawned” or “resurrected” previously- 26 deleted cookies. Id. ¶ 40. This code was “inescapable” and allowed Plaintiffs’ data to be 27 “retained . . . so that they could be tracked over long periods of time and across multiple websites, 28 regardless of whether they were registered and logged in.” Id. ¶ 69. As a result, when Class ORDER (C 11-03764 LB) 5 1 Members viewed video content on, Hulu transmitted their video viewing choices and 2 personally identifiable information to third parties without obtaining their written consent before the 3 disclosure. Id. ¶¶ 52, 59, 69, 116. The third parties included online ad networks, metrics companies, 4 and social networks such as Scorecard Research (“Scorecard”) (an online market research 5 company), Facebook (the online social network), DoubleClick (an online ad network), Google 6 Analytics (an online web analytics company), and QuantCast (an online ad network and web 7 analytics company). Id. ¶¶ 52-53, 116. 8 The information transmitted to Scorecard and Facebook included information that identified 9 Plaintiffs and Class Members personally. Id. ¶ 53. As to Facebook, Hulu included their Facebook information. Id. ¶ 58. As to Scorecard, Hulu provided Plaintiffs’ “Hulu profile identifiers” linked to 12 For the Northern District of California IDs, connecting the video content information to Facebook’s personally identifiable user registration 11 UNITED STATES DISTRICT COURT 10 their “individual Hulu profile pages that included name, location, preference information designated 13 by the user as private, and Hulu username (which, in the case of many individuals, is the same 14 screen name used in other online environments.)” Id. ¶ 54. Scorecard stored the Hulu ID 15 information in a cookie named “” and stored the video information in a 16 cookie named “” Id. ¶ 55. Scorecard also set its own unique 17 identifier tied to these two cookies. Id. Scorecard’s cookies were unencrypted, so any intruder who 18 gained access to a Class Member’s computer could “engage in a trivial exploit to view the profile 19 and perform a ‘screen scrape’ copy of that person’s profile page. Id. ¶ 56. Hulu’s and Scorecard’s 20 practice of sharing user profile IDs and storing them in cookies is a severe failure to observe basic 21 security standards in the handling of user information. Id. ¶ 58. 22 Plaintiffs and Class Members “reasonably expected that Hulu would not disclose their video 23 and/or video service requests and their identities to social networks and online ad/metrics networks,” 24 and they “did not authorize or otherwise consent to” such disclosures. Id. ¶¶ 59-60. 25 5. Hulu’s Terms of Use and Privacy Policy 26 As a condition of using Hulu, Plaintiffs agreed to Hulu’s terms of use and privacy policy. 27 Plaintiffs reference the policy in the complaint, and Hulu attached the November 17, 2010 privacy 28 policy, the updated June 30, 2011 policy, and the terms of use to its motion to dismiss. Robinson ORDER (C 11-03764 LB) 6 1 Decl., Exs. A-C, ECF Nos. 50-1 to 50-3. Because Plaintiffs reference the policy in the complaint 2 and do not question the authenticity of the documents (and indeed cite them), the court considers 3 them. See Bell Atlantic v. Twombly, 550 U.S. 544, 568 n.13 (2007); Branch v. Tunnell, 14 F.3d 449, 4 454 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 5 1119, 1127 (9th Cir. 2002). 6 7 III. DISCUSSION Plaintiffs allege that Hulu “knowingly and without . . . [their] consent disclosed to third 8 parties . . . [their] video viewing selections and personally identifiable information, knowing that 9 such disclosure included the disclosure of [their] personally identifying information . . . and their requests for and/or obtaining of specific video materials and/or services from Hulu,” in violation of 11 the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710(b)(1). Id. ¶¶ 116-17. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 The VPPA prohibits a “video tape service provider” from (1) knowingly disclosing to any person 13 (2) personally identifiable information concerning any consumer of such provider (3) except for 14 certain disclosures – like to the consumer or law enforcement – allowed under section 2710(b)(2). 15 18 U.S.C. § 2710. “‘Personally identifiable information’ includes information which identifies a 16 person as having requested or obtained specific video materials or services.” Id. § 2710(a)(3). 17 Section 2710(c)(1) provides a private federal right of action to “any person aggrieved by any act 18 of a person in violation of this section.” Under section 2710(c)(2), the federal court may award (A) 19 actual damages but not less than liquidated damages of $2,500, (B) punitive damages, (C) 20 reasonable attorneys’ fees and litigation costs, and (D) preliminary and equitable relief that the 21 court determines is appropriate. 22 Hulu first moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that 23 Plaintiffs lack standing. Motion to Dismiss, ECF No. 49 at 12-15. Hulu also moves for dismissal 24 under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because (1) Hulu is not a 25 “Video Tape Service Provider” and thus is not liable under the Act, (2) any disclosures were 26 incident to the ordinary course of Hulu’s business and are not covered by the Act, and (3) Plaintiffs 27 are not “consumers” within the meaning of the Act. Id. at 21-24. The court addresses only the 28 standing issue now and defers consideration of the 12(b)(6) motion until the August 23, 2012 ORDER (C 11-03764 LB) 7 1 2 hearing. Hulu alleges that Plaintiffs do not have standing because sharing information is not a loss that right of action conveys standing. Opposition, ECF No. 58 at 8-9 (collecting cases). Hulu counters 5 that the Supreme Court is considering a case that may eliminate statutory standing as a stand-alone 6 basis for establishing a case or controversy. Reply, ECF No. 60 at 5-7 (arguing also that if it does, 7 Plaintiffs’ failure to respond to Hulu’s other standing arguments in this briefing round should 8 preclude their arguing it in any supplemental briefing) (citing First Am. Fin. Corp. v. Edwards, 131 9 S. Ct. 3022 (June 20, 2011)). The court finds standing under current case law because the VPPA 10 provides Plaintiffs with a right to judicial relief, but orders additional briefing because the pending 11 Supreme Court case may alter this analysis. The court finds that Plaintiffs alleged that their rights 12 For the Northern District of California conveys standing. Id. at 13. Plaintiffs respond that they have standing because the VPPA’s private 4 UNITED STATES DISTRICT COURT 3 were violated with sufficient particularity. 13 A. Legal Standard 14 Standing pertains to the court’s subject-matter jurisdiction and thus is properly raised in a Rule 15 12(b)(1) motion to dismiss. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 16 (9th Cir. 2010). The party asserting a claim has the burden to establish standing, and the court 17 presumes lack of jurisdiction unless the claimant proves otherwise. See Kokkonen v. Guardian Life 18 Ins. Co. of America, 511 U.S. 375, 376-78 (1994); Colwell v. Dept. of Health and Human Servs., 19 558 F.3d 1112, 1121 (9th Cir. 2009). In a facial attack (like this one) on the sufficiency of the 20 complaint’s allegations to establish standing, the court “‘must accept as true all material allegations 21 of the complaint and must construe the complaint in favor of the complaining party.’” Graham v. 22 FEMA, 149 F.3d 997, 1001 (9th Cir. 1998) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). 23 The doctrine of standing encompasses constitutional requirements and prudential considerations. 24 See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 25 U.S. 464, 471 (1982); Sahni v. American Diversified Partners, 83 F.3d 1054, 1057 (9th Cir. 1996). 26 Article III gives the federal courts jurisdiction only over cases or controversies. See Whitmore v. 27 Arkansas, 495 U.S. 149, 154-55 (1990). Establishing standing under Article III requires the 28 following for each claim: (1) the party must suffer an actual or threatened injury; (2) the injury must ORDER (C 11-03764 LB) 8 1 be fairly traceable to the challenged conduct; and (3) it is likely (as opposed to merely speculative) 2 that a favorable decision will redress or prevent the injury. See Friends of the Earth, Inc. v. Laidlaw 3 Envtl. Servs. (TOC), 528 U.S. 167, 180-81, 185 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 4 555, 560-61 (1992); Valley Forge Christian College, 454 U.S. at 472; Sahni, 83 F.3d at 1057. “In a 5 class action, standing is satisfied if at least one named plaintiff meets the requirements.” See Bates 6 v. United Parcel Serv., 511 F.3d 974, 985 (9th Cir. 2007). 7 Prudential considerations require the following: (1) a party must assert his own legal rights and 8 interests, not those of others; (2) courts will not adjudicate “generalized grievances;” and (3) a 9 party’s claims must fall within the zone of interests that is protected or regulated by the statute or Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009). 12 For the Northern District of California constitutional guarantee in question. See Valley Forge Christian College, 454 U.S. at 474-75; 11 UNITED STATES DISTRICT COURT 10 B. Analysis 13 The VPPA provides a private right of action to any person aggrieved by unlawful disclosure of 14 information under the statute. See 18 U.S.C. § 2710(c)(1). A court may award actual damages but 15 not less than $2,500 statutory liquidated damages, punitive damages, reasonable fees and costs, and 16 other preliminary and equitable relief. Id. § 2710(c)(2). Plaintiffs point out, and Hulu does not 17 dispute, that the Ninth Circuit recognizes that a plaintiff satisfies Article III’s injury-in-fact 18 requirement by alleging a violation of a statutorily-created legal right. ECF No. 58 at 8-9 (collecting 19 cases); ECF No. 60 at 7. 20 For example, in Jewel v. National Security Agency, the plaintiff in a putative class action alleged 21 that the federal government used surveillance devices attached to AT&T’s network to intercept the 22 communications of class members, thereby violating three surveillance statutes: the Foreign 23 Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., the Electronic Communications 24 Privacy Act (“ECPA”), 18 U.S.C. § 2510 et seq., and the Stored Communications Act (“SCA”), 18 25 U.S.C. § 2710 et seq. 673 F.3d 902, 905-06 (9th Cir. 2011). All three statutes explicitly create 26 private rights of action for claims of illegal surveillance. Id. at 908; see, e.g. 50 U.S.C. § 2520 27 (FISA private right of action to any person whose communication is intercepted, disclosed, or 28 intentionally used). The Jewel court concluded that Jewel alleged concrete injury sufficiently. 673 ORDER (C 11-03764 LB) 9 1 F.3d at 908. 2 Similarly, in Edwards v. First American Corporation, a home purchaser alleged that her 3 settlement agent illegally referred her title insurance business to First American pursuant to an 4 exclusive agency agreement in violation of the anti-kickback provisions of the Real Estate 5 Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607. 610 F.3d 514, 515-16 (9th Cir. 2010), 6 cert. granted, 113 S. Ct. 3022 (June 20, 2011). Under RESPA, “[a] person who is charged for a 7 settlement service involved in a [RESPA] violation is entitled to three times the amount of any 8 charge paid” (as opposed to just overcharges). Id. at 517 (emphasis in original) (citing 12 U.S.C. 9 § 2607(d)(2)). The court concluded that the home purchaser established an injury that satisfied 10 Article III. Id. Courts have applied this principle – that Congress can define a “legal right, the invasion of 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 which establishes standing,” see Edwards, 610 F.3d at 517 – to find standing when a consumer 13 alleges a violation of a consumer privacy statute with a private right of action. For example, the 14 Driver’s Privacy Protection Act prohibits certain uses and disclosures of private information 15 provided to DMVs in connection with motor vehicle records. See 18 U.S.C. § 2721(a) and (b); 16 Graczyk v. West Pub. Co., 660 F.3d 275, 277 (7th Cir. 2011). Under the statute, a plaintiff may file a 17 federal lawsuit against someone who improperly obtains the plaintiff’s private information. See 18 18 U.S.C. § 2724(a). No further injury is necessary to establish standing. See Graczyk , 660 F.3d at 19 278. Similarly, the Cable Communications Policy Act, 47 U.S.C. §§ 421-561, contains privacy 20 measures governing a cable company’s use of the cable system to collect personally identifiable 21 information, and it permits cable subscribers to bring a civil action to enforce the privacy provisions. 22 See Klimas v. Comcast Cable Comms., Inc., 465 F.3d 271, 275-76 (6th Cir. 2006). Alleging a 23 privacy violation under the Act constitutes standing even absent economic harm. Id. 24 Under current law, then, Plaintiffs establish an injury (and standing) by alleging a violation of a 25 statute. Hulu counters that the Supreme Court’s decision this term in Edwards will clarify whether 26 alleging only a statutory violation is sufficient injury-in-fact to convey standing. Reply, ECF No. 60 27 at 7. 28 The court observes that Edwards involved no economic injury because Ohio law fixed the fees ORDER (C 11-03764 LB) 10 1 that title insurers could charge. 610 F.3d at 516. By contrast, release of private information might 2 be the additional harm that may make a statutory violation sufficient to convey standing. Still, the 3 Court’s decision in Edwards likely will alter the standing analysis. Accordingly, the court defers 4 ruling on the motion to dismiss and sets a further briefing schedule below limited solely to this 5 standing issue. The undersigned rejects Hulu’s argument that Plaintiffs’ reliance on their statutory 6 standing argument waives their right to respond further in supplemental briefing. 7 Hulu also argues that Plantiffs did not allege the particularized injury needed to establish 8 standing because they did not “allege facts showing that Hulu violated the VPPA by disclosing 9 information that ties the identity of each Plaintiff to the video(s) that he or she viewed on” alleged such a personal stake in the outcome of the controversy as to warrant . . . invocation of 12 For the Northern District of California ECF No. 60 at 7; see Jewel, 673 F.3d at 909 (“The critical question is whether [the plaintiff] ‘has 11 UNITED STATES DISTRICT COURT 10 federal court jurisdiction’”) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). But 13 the complaint does have allegations about injury: 14 • When Class Members viewed video content on Hulu’s website, Hulu transmitted their video viewing choices and personally identifiable information to third parties without Class Members’ written consent before disclosure. ECF No. 37, ¶¶ 52, 58-60, 69, 116. • The third parties included online ad networks, metrics companies, and social networks such as Scorecard Research, Facebook, DoubleClick, Google Analytics, and QuantCast. Id. ¶¶ 53, 116. • Hulu’s transmissions of video viewing information to Scorecard and Facebook included information that personally identified Plaintiffs and Class Members. Id. ¶ 53. • As to Facebook, the information included “Plaintiffs’ and Class Members’ Facebook IDs, [which connected] the video content information to Facebook’s personally identifiable user registration information.” Id. ¶ 58. • As to Scorecard, Hulu provided the Hulu profile identifiers linked to their individual Hulu profile pages that included identifying information, preference information designated as private, and Hulu username. Id. ¶¶ 53-54, 58. 15 16 17 18 19 20 21 22 23 24 In Jewel, the Ninth Circuit concluded that the plaintiff’s allegations were sufficiently 25 particularized where she alleged that the government had intercepted the communications “of 26 practically every American who uses the phone system or the Internet, including Plaintiffs and class 27 members in an unprecedented suspicionless general search through the nation’s communications 28 network.” Jewel, 673 F.3d at 909-11. The court finds Plaintiffs’ allegations here sufficiently ORDER (C 11-03764 LB) 11 1 particularized. 2 IV. CONCLUSION 3 The court dismisses state claims two, three, five, six, and seven without prejudice. The court 4 dismisses claim four – a federal claim that alleges wrongful access of Class Members’ computers in 5 violation of 18 U.S.C. § 1030, et seq. – with prejudice. 6 As to the remaining claim one, the court holds that under the law as it stands now, Plaintiffs 7 alleged standing sufficiently. The court nonetheless orders further briefing because the Supreme 8 Court’s decision in Edwards likely will alter the standing analysis. Accordingly, the court defers 9 ruling on the 12(b)(1) motion challenging standing and sets the following schedule: Date Hulu’s seven-page supplemental brief July 19, 2012 12 For the Northern District of California Event 11 UNITED STATES DISTRICT COURT 10 Plaintiffs’ seven-page response August 2, 2012 13 Hulu’s optional 3-page reply August 9, 2012 14 Further argument August 23, 2012, 11 a.m. 15 The parties may alter the dates (but not the time period between the conclusion of briefing and 16 argument) if the timing of the Edwards opinion makes the schedule too ambitious. 17 18 19 20 At the parties’ request, and because jurisdiction is a threshold issue, the court defers ruling on Hulu’s Rule 12(b)(6) motion to dismiss for failure to state a claim. IT IS SO ORDERED. Dated: June 11, 2012 _______________________________ LAUREL BEELER United States Magistrate Judge 21 22 23 24 25 26 27 28 ORDER (C 11-03764 LB) 12

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