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Class Certification Denied in Facebook Privacy Suit
A federal judge in San Jose has denied class certification in a long-running case claiming that Facebook Inc. disclosed users' personally identifiable information to advertisers when they clicked on some Facebook ads. In Re: Facebook Privacy Litigation, Case No. 5:10-cv-02389.
U.S. District Senior Judge Ronald Whyte wrote that individualized nature of the plaintiffs' claims weighed against class treatment, but the reasoning behind his decision will remain a mystery for a while. All but three pages of Whyte's 19-page order issued in June were redacted. The judge wrote that he'd give the parties two weeks to seek to seal any “confidential information” revealed in his order.
The ruling comes in a case that dates back to 2010, when several separate proposed class actions were consolidated before then-U.S. District Chief Judge James Ware. The suits alleged Facebook sent so-called “referer headers” to advertisers when users clicked a Facebook ads. Plaintiffs alleged that prior to July 2010 the headers transmitted information could allow an advertiser to identify the user who clicked a given ad despite Facebook's promises to only share anonymized data about users.
In 2011, Ware dismissed all claims that the plaintiffs had failed to show any actual harm or that their personally identifiable information had any value. The U.S. Court of Appeals for the Ninth Circuit, however, revived plaintiffs' breach of contract and fraud claims finding that the plaintiffs could have been harmed by both “the dissemination of their personal information and by losing the sales value of that information.”
After Ware's retirement, the case was reassigned to Whyte. In a separate order from his class certification decision, Whyte partially granted Facebook's latest motion to dismiss the case. He knocked out the individual claims of one of the two named plaintiffs, Katherine Pohl, finding that she had only clicked on one Facebook ad during the relevant period. That ad routed her to the advertiser's internal Facebook page, which Whyte found did not reveal any of her personal information. Whyte, however, found that named plaintiff Wendy Marfeo did have standing to sue.
Ross Todd writes for The Recorder, an ALM sibling of Internet Law & Strategy. He can be reached at [email protected].
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