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.
Significantly, the Third Circuit also considered and rejected defendants’ argument that plaintiffs had suffered no losses as a result of the alleged wrongdoing and, therefore, lacked standing to bring suit under Article III, § 2 of the United States Constitution. The court disagreed with defendants’ position that pecuniary loss was required to establish the existence of injury, finding that the alleged invasion of statutorily-created rights (such as under the California Constitution) is sufficient to establish actionable injury. The court goes on to state that placement of unwanted cookies on plaintiffs’ personal computers also constituted actionable injury. The court, however, does not address the potential impact of the impending decision in Spokeo v. Robins, No. 13-1339, in which the Supreme Court will decide whether standing exists where there has been a violation of a legal right without any concrete harm flowing from that violation. A decision by the Supreme Court in Spokeo that conditions standing on some form of concrete harm independent of an invasion of a legally-protected interest could overrule the Third Circuit’s decision in Google or, at a minimum, provide a ground for reargument of defendants’ standing objection. Spokeo was argued on November 2, 2015. The decision in Spokeo will issue before the conclusion of the current Supreme Court term, likely with the first three months of 2016.