Proposed Class in Hulu Privacy Suit Needs Objective Data

The federal magistrate seconded Hulu's concerns that the handsome damages at stake could entice Hulu users to try to join the class, regardless of whether their privacy had been violated. “That incentive and the vagaries of subjective recollection make this case different than the small-ticket consumer protection class actions that this district certifies routinely,” the magistrate wrote.

Hulu lawyer Robert Schwartz of O'Melveny & Myers declined to comment on the order, but plaintiffs' lawyer Scott Kamber of New York's KamberLaw said the plaintiffs still hope to proceed as a class. “We have every intention of taking any additional discovery that may be necessary and following the decision in order to renew our motion for class certification.”

The plaintiffs claim that Hulu trampled their right to privacy by sharing the titles of videos the plaintiffs viewed on the site with Facebook and with data analytics firm comScore. Ruling on Hulu's motion for summary judgment in April, Magistrate Beeler found that Hulu was not liable for sharing information with comScore but refused to let the company off the hook for information it shared with Facebook. See, “Hulu Can't Shake Video Privacy Class Action,” The Recorder.

Hulu installed a Facebook “like” button on its video pages in 2010. But even if a user didn't click on the button, Hulu sent the title of the video and other information back to the social networking company, according to plaintiffs. Magistrate Beeler noted that many people block or delete cookies, meaning the court would have to launch a complex inquiry to determine which Hulu users had actually been harmed. “Objective criteria ' are important to establishing class membership as opposed to relying only on potential members' say so and subjective memories that may be imperfect,” the magistrate wrote.

Subclasses might address the issue, but the plaintiffs had not proposed any tools for narrowing down the pool. The plaintiffs limited their potential damages haul somewhat by seeking just one violation per class member. Still, Hulu argued that it could invoke the due process clause if the court found it must pay billions for sharing viewers' information. The concern seemed to resonate with Magistrate Beeler.

“That award is wildly disproportionate to any adverse effects class members suffered, and it shocks the conscience,” the magistrate wrote.

Julia Love is the Federal Courts and IP Reporter for The Recorder, the San Francisco-based ALM sibling of Entertainment Law & Finance.

With eye-popping damages at stake, a federal magistrate refused to allow consumer plaintiffs to move forward as a class with claims that Hulu violated their privacy by sharing the videos they viewed. In Re: Hulu Privacy Litigation, 11-03764.

In a 38-page order, San Francisco U.S. Magistrate Judge Laurel Beeler of the Northern District of California dismissed without prejudice the plaintiffs' motion to certify a class of Hulu users. The plaintiffs filed their claims under the Video Privacy Protection Act (VPPA), 18 U.S.C. '2710, which provides for statutory damages of $2,500 per violation. The VPPA was enacted by Congress in 1988 after a newspaper published a list of videos rented by U.S. Supreme Court nominee Robert Bork.

Hulu had warned it might have to pay billions in damages if a class were certified. Without a detailed proposal for verification from the plaintiffs, Magistrate Beeler concluded that she would likely have to rely on self-reporting to determine who belonged in the class. She insisted that class members should be subjected to greater scrutiny before cashing in on such a large award. “The claims apparently are not amenable to ready verification,” she wrote. “And at $2,500 per class member, they are not small.”

The federal magistrate seconded Hulu's concerns that the handsome damages at stake could entice Hulu users to try to join the class, regardless of whether their privacy had been violated. “That incentive and the vagaries of subjective recollection make this case different than the small-ticket consumer protection class actions that this district certifies routinely,” the magistrate wrote.

Hulu lawyer Robert Schwartz of O'Melveny & Myers declined to comment on the order, but plaintiffs' lawyer Scott Kamber of New York's KamberLaw said the plaintiffs still hope to proceed as a class. “We have every intention of taking any additional discovery that may be necessary and following the decision in order to renew our motion for class certification.”

The plaintiffs claim that Hulu trampled their right to privacy by sharing the titles of videos the plaintiffs viewed on the site with Facebook and with data analytics firm comScore. Ruling on Hulu's motion for summary judgment in April, Magistrate Beeler found that Hulu was not liable for sharing information with comScore but refused to let the company off the hook for information it shared with Facebook. See, “Hulu Can't Shake Video Privacy Class Action,” The Recorder.

Hulu installed a Facebook “like” button on its video pages in 2010. But even if a user didn't click on the button, Hulu sent the title of the video and other information back to the social networking company, according to plaintiffs. Magistrate Beeler noted that many people block or delete cookies, meaning the court would have to launch a complex inquiry to determine which Hulu users had actually been harmed. “Objective criteria ' are important to establishing class membership as opposed to relying only on potential members' say so and subjective memories that may be imperfect,” the magistrate wrote.

Subclasses might address the issue, but the plaintiffs had not proposed any tools for narrowing down the pool. The plaintiffs limited their potential damages haul somewhat by seeking just one violation per class member. Still, Hulu argued that it could invoke the due process clause if the court found it must pay billions for sharing viewers' information. The concern seemed to resonate with Magistrate Beeler.

“That award is wildly disproportionate to any adverse effects class members suffered, and it shocks the conscience,” the magistrate wrote.

Julia Love is the Federal Courts and IP Reporter for The Recorder, the San Francisco-based ALM sibling of Entertainment Law & Finance.