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Judge: No Class Action Against Hulu

25 Jun, 2014 By: Doug McPherson

SAN FRANCISCO – A federal judge has ruled consumers suing online video company Hulu for alleged privacy violations can’t continue as a class.

The consumers say Hulu violated the Video Privacy Protection Act by allegedly disclosing the names of the programs they watched with Facebook. The group wanted to proceed on behalf of everyone who had both a Hulu and a Facebook account between April 2010 and June 2012.

But U.S. District Court Judge Laurel Beeler denied that request, ruling that not all Hulu users were equally affected by the potential violation of the law. The consumers can move forward as individuals, but that would be expensive.

The “without prejudice” decision means the consumers can try again to convince Beeler to certify a class. But they may not be able to. Beeler wrote she couldn’t yet tell whether the problems she flagged “could be resolved by narrowing the class definition, by defining subclasses, by reference to objective criteria, by a damages analysis that addresses pecuniary incentives, or otherwise.”

Beeler previously ruled that Hulu might have violated the federal video privacy law, which prohibits movie rental companies from disclosing information about the videos people watch. But the judge said that even if Hulu broke the law, the violations wouldn’t have affected people who changed their default settings or took other anti-tracking measures.

Wendy Davis, a writer with MediaPost News, wrote that’s because information about the movies was transmitted from Hulu to Facebook via cookies, but those cookies weren’t sent in every case. “If users took steps to block tracking – such as by using ad-blocking software, clearing their cookies, logging out of Facebook, or using different browsers for Facebook and Hulu – their movie-viewing history wouldn’t have been shared,” Davis wrote.

Beeler also said there didn’t appear to be a good way to distinguish between the users who took those kinds of measures and those who didn’t. She rejected a proposal, put forward by the consumers’ lawyers, to simply ask users how they configured their computers. “The court cannot tell how potential class members reliably could establish by affidavit the answers to the potential questions: Do you log into Facebook and Hulu from the same browser; do you log out of Facebook; do you set browser settings to clear cookies; and do you use software to block cookies,” she wrote.

Beeler also suggested that the possibility of a large damage award – the Video Privacy Protection Act calls for damages of $2,500 – creates an incentive for consumers to lie. “That incentive and the vagaries of subjective recollection makes this case different than the small-ticket consumer protection class-actions that this district certifies routinely,” Beeler wrote.

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