On Wednesday, June 17, United States Magistrate Judge Laurel Beeler denied without prejudice plaintiffs’ motion for class certification in the In re Hulu Privacy Litigation matter, a putative class action brought under the Video Privacy Protection Act (“VPPA”). In April 2014, Magistrate Judge Beeler granted summary judgment in favor of Hulu with respect to viewing information Hulu allegedly disclosed to metrics company comScore, but denied summary judgment with respect to disclosures allegedly made to Facebook.
Plaintiffs originally sought to certify a class of persons who from April 2010 through June 2012 “were registered users of hulu.com . . . while being members of Facebook and requested and/or obtained video materials and/or services on hulu.com during the class period.” At oral argument on class certification, however, plaintiffs narrowed their class to those individuals who had information disclosed to Facebook because a particular Facebook cookie that contains a logged-in user’s Facebook user-ID, was on their computer. Magistrate Judge Beeler explained that the effect of this was to limit the putative class to those registered Hulu users who at least once during the class period watched a video on hulu.com having used the same computer and web browser to log into Facebook in the previous four weeks using default settings.
Magistrate Judge Beeler found that such a proposed class failed to meet the prerequisites for certification. First, she found that the class was not ascertainable because membership in the class turned on whether the specific cookie was sent to Facebook, which itself depended on a number of variables. For example, that cookie would not have been sent to Facebook if, among other things, the user logged out of Facebook, cleared cookies, or used ad-blocking software. As a result, the only way to identify individual class members would be to rely on self-reporting affidavits. Magistrate Judge Beeler found that although proof by such affidavits does not always defeat ascertainability, reliance on affidavits can be problematic where, for example, it is hard to verify them and the dollar amount for claims are high. Applying this to the case at hand, she found that whether a user cleared cookies or logged out of Facebook prior to using hulu would be both prone to subjective memory problems and hard to verify. And that the incentives to participate in the class were high because users can recover up to $2,500 under the VPPA. Accordingly, she concluded that the proposed class was not ascertainable.
Magistrate Judge Beeler found that the proposed class also did not meet the predominance and superiority requirements of Federal Rule of Civil Procedure 23(b)(3). With respect to predominance, she explained that “the substantial issues about remaining logged into Facebook and clearing and blocking cookies mean that the court cannot conclude on this record that the common issues predominate over the individual ones.” With respect to superiority, she explained that “based on the court’s holding that a class is not ascertainable on this record, class treatment is not superior.”
Magistrate Judge Beeler did find that the proposed class met the remaining Rule 23(b) requirements, as well as the requirements of Rule 23(a). She also noted on several occasions that her issues could potentially be resolved by narrowing the class definition or using sub-classes. In light of this, and because her order was issued without prejudice, it is possible that the plaintiffs will seek certification of a different class in an attempt to address Magistrate Judge Beeler’s concerns.
Featured Photo by Surian Soosay from Flickr
