In re Google Inc. Cookie Placement Consumer Privacy Litigation, 2013 WL 5582866 (D. Del. Oct. 9, 2013)
Plaintiffs brought multidistrict consolidated litigation against Google and several online advertisers that work with Google arguing that the Defendants used coding in advertisements that “‘tricked’ their Apple Safari and/or Internet browsers into accepting cookies, which then allowed defendants to display targeted advertising.”Plaintiffs asserted claims under the Wiretap Act, Stored Communications Act and Computer Fraud and Abuse Act, inter alia.
The Court granted a motion to dismiss all claims. Of note, the Court found the Plaintiffs did not meet the Article III standing requirement because, while they were able to articulate some modicum of identifiable value to each individual Plaintiff’s PII, the Plaintiffs did not sufficiently allege that Defendants’ activities diminished that value.
The Court granted the motion to dismiss the CFAA claim because Plaintiffs failed to adequately plead the jurisdictional threshold loss even though the Court seemed to improperly use the terms loss as damages interchangeably. In footnote 11 the Court noted that it did not view Google’s actions as a “single act” that would permit the aggregation of damages (note, § 1030(c)(4)(A)(i)(1) that discusses aggregation refers to loss not damages) and found the Plaintiffs could not meet this threshold:
Plaintiffs have not alleged the kind of damage or loss required to maintain a CFAA claim. More specifically, plaintiffs have not identified any impairment of the performance or functioning of their computers. Generally, courts have rejected the contention that the unauthorized collection, use, or disclosure of personal information constitutes economic damages for the purposes of the CFAA. As discussed above under the Article III standing analysis, plaintiffs have not shown individual economic loss. Therefore, the court concludes that plaintiffs have not sufficiently alleged the threshold loss of $5,000 required by the CFAA. Defendants’ motion to dismiss this claim is granted. (internal citations omitted)