New opinion — a major consumer privacy ruling (with an error) [Updated]

In re Google Inc. Cookie Placement Consumer Privacy Litig. — consumer class action — vacate in part — Fuentes

Google apparently found a clever way to defeat the Safari browser’s cookie-blocking feature, but sometimes clever is illegal. When a grad student discovered what Google had done, Google had to pay out almost $40 million to settle two government suits. Then consumer plaintiffs filed class-action suits alleging various federal- and state-law violations, which were consolidated by the Multi-District Litigation panel. The district court dismissed the suits under FRCP 12(b)(6), and the consumers appealed. Today, the Third Circuit largely affirmed the dismissals, but vacated the dismissal of certain state-law privacy claims.

Unfortunately, the opinion contains a big error. On page 16 of the slip opinion, in a road map preview, the opinion states, “we will vacate the dismissal of plaintiffs’ Wiretap Act claim.” But in fact the opinion “affirm[s] the District Court’s dismissal of the plaintiffs’ Wiretap Act claim” at p. 41. Oops.

(Aside: not the first time that’s ever happened.)

Joining Fuentes were Fisher and Krause. Arguing counsel were Jason Barnes for the consumers and Michael Rubin for Google.


UPDATE: the court has issued a correction.