The large wave of cookie wiretapping lawsuits does not seem to be subsiding, but a plaintiff-favorable outcome is far from assured.
A new decision by the US District Court in Delaware dismisses a claim based on the plaintiff’s failure to prove that individuals in the proposed class could actually be identified as having received the cookies in question.
Notably, the court’s analysis focused on whether class members could be identified through reliable evidence, rather than on whether the challenged cookie practices were lawful.
The court’s decision provides several lessons for plaintiffs and defendants:
- Plaintiffs cannot proceed on behalf of a class unless they have a reliable method of identifying the class members who allegedly received those cookies through the challenged conduct.
Link to On discovery and expert analysis: On discovery and expert analysis:
- You need to rely on expert analysis grounded in the record, rather than speculation regarding the defendant’s systems.
- If you know from the outset of discovery that ascertainability represents a central obstacle to certification, you should not wait until the end of discovery to identify the information you believe necessary and to explain how that information assists your analysis.
- You must be able to explain whether the requested information would actually permit identification of class members.
Link to Preservation: Preservation:
- Plaintiffs also need to think carefully about preserving class-member computers and other potential sources of evidence. Otherwise, relevant evidence may be lost, which could harm their case.
- The scope of the duty to preserve evidence depends on what a reasonable person would have thought about the scope of such duty at the time it arose, not many years into the subsequent litigation.
The decision demonstrates that the battle over cookie wiretapping claims does not turn solely on the alleged technology, but also on issues such as jurisdiction, proof, and class certification. Companies, however, should keep the bigger picture in mind. In addition to private litigation, website compliance may also give rise to regulatory scrutiny under consumer protection laws enforced by State Attorneys General and the FTC, as well as under state privacy laws. There, once again, compliance measures and technology take center stage.