On June 17, 2014, Magistrate Judge Laurel Beeler of the Northern District of California denied class certification for the proposed class of Hulu and Facebook users alleging that their personal information was transmitted to Facebook in violation of the Video Privacy Protection Act (VPPA). We’ve written about this VPPA case before. At the end of April, the court granted Hulu’s motion for summary judgment as to disclosures Hulu made to comScore (a third-party analytics provider), but denied it as to disclosures made to Facebook.
In denying class certification, Judge Beeler found that the class was not ascertainable because the only manner in which to identify the class would be by class members self-reporting via an affidavit. The court reasoned that it would be inappropriate here because the higher dollar amount involved with VPPA violations (i.e., $2,500) required some form of verification using objective criteria. The court further noted that the claims alleged here could not be easily verified. Based on the record before it, the court could not tell how a potential class member could reliably establish whether s/he logs into Facebook and Hulu from the same browser, logs out of Facebook, clears cookie settings, and uses software to block cookies. The importance of these things is that plaintiffs’ disclosure theory is based on transmission of a certain cookie to Facebook, and this would potentially happen for Hulu users who watched a video using hulu.com, having used the same computer and web browser to log into Facebook in the previous four weeks using default settings.
Relatedly, the court also found that while there were common questions of law or fact that pertained to the class, those common questions did not “predominate,” as required by FRCP 23(b)(3). The court held that substantial issues about whether class members remained logged into Facebook and whether they would clear or block cookies indicated that common issues did not predominate over individual ones.
The court denied class certification without prejudice, but noted that it was unaware of how plaintiffs could overcome these issues given the current factual record. It will be interesting to see whether the plaintiffs take another attempt at certifying the class and how this ruling impacts other VPPA cases pending around the nation.