Standing Issues Could Still Derail Google Cookie Placement Litigation

In a decision almost a year in the making, the Third Circuit's recent opinion in In re Google Inc. Cookie Placement Privacy Litig. (3d Cir. Nov. 10, 2015), ("Google"), reversed a trial court order dismissing a lawsuit alleging that Google and other internet advertising companies circumvented cookie-blocking technology in Safari and Internet Explorer web browsers. In doing so, the panel rejected a standing argument advanced by defendants that is identical to an issue currently pending before the Supreme Court. A defense-favorable ruling on that issue by the Supreme Court could require a second look at the question of standing in Google.

In Google, plaintiffs allege that defendants exploited loopholes in the browsers' cookie-blocking features to place cookies on plaintiffs' computers that tracked plaintiffs' web-browsing activities. Defendants then used that tracking information to place targeted advertisements on web pages that plaintiffs visited. Plaintiffs claimed that the use of such cookies violated federal and state law. The trial court rejected defendants' argument that the plaintiffs lacked standing, but dismissed all of their claims for failure to state a claim upon which relief may be granted.

On appeal, the Third Circuit affirmed dismissal of plaintiffs' federal claims under the Wiretap Act, 18 U.S.C. § 2510, et seq., the Stored Communications Act, 18 U.S.C. § 2701, and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and its dismissal of California statutory claims. However, the panel vacated dismissal of plaintiffs' privacy claims under the California Constitution and California tort law. The court's reasoning centered on the broad privacy protections afforded under California constitutional and common law and the allegedly surreptitious nature of defendants' conduct. California recognizes a common law claim for invasion of privacy where (i) a defendant intentionally intrudes into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy; and (ii) the intrusion occurs in a manner highly offensive to a reasonable person. See Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009). This principle is consonant with the California Constitution, which expressly guarantees a right to privacy. See Cal. Const. Art. I, § 1. Plaintiffs alleged that defendants' use of the cookies was contrary to representations made by defendant Google that the Safari and Internet Explorer cookie-blocking...