Cruz-Alvarez and Canfield Discuss Facebook Tracking Class Action for WLF Legal Pulse

Shook, Hardy & Bacon Partner Frank Cruz-Alvarez and Associate Rachel Canfield have authored a Washington Legal Foundation (WLF) Legal Pulse article on the dismissal of a $15-billion lawsuit alleging that Facebook, Inc. improperly used "persistent" cookies to track browsing activity after users logged off the social network. The lawsuit apparently claimed that Facebook "violated numerous state and federal laws, including the Federal Wiretap Act, the Stored Communications Act (SCA), the Computer Fraud and Abuse Act (CFAA) (withdrawn from the complaint), California’s Unfair Competition Law (UCL), the California Computer Crime Law (CCCL), the California Invasion of Privacy Act (CIPA), and California’s Consumer Legal Remedies Act (CLRA)."

In the order granting Facebook's motion to dismiss, U.S. District Judge Edward J. Davila found that the plaintiffs failed to connect the intrinsic value of their personal information "to a realistic harm or loss that is attributable to Facebook’s alleged conduct." As the article notes, "[Judge Davila] explained that the complaint did not demonstrate that any Plaintiff 'personally lost the opportunity to sell their information or the value of the information was diminished' by Facebook’s tracking practices and that the complaint alluded to injury that is 'conjectural or hypothetical.'"

Based on this reasoning, the order also dismissed the common-law claims as well as the UCL, CLRA and CCCL claims. Judge Davila further ruled that, according to the Ninth Circuit's interpretation, the plaintiffs' Wiretap Act claim "failed to plead that Facebook intercepted the 'contents' of an electronic communication." He identified similar issues with the SCA claims, concluding that SCA clearly targets "'communications temporarily stored by electronic communication services incident to their transmission,' as opposed to cases as this one which involves personal information permanently stored in users’ personal web browsers."