Hulu Fights On Against Privacy Class Action

     SAN FRANCISCO (CN) - Hulu asked a federal judge to deny a class certification over allegations it illegally discloses viewer data to Facebook and a business-analytics service.
     Joseph Garvey is the lead plaintiff in the February 2012 lawsuit claiming that Hulu "repurposed" its browser cache so marketing-analysis services could store users' private data.
     While U.S. Magistrate Judge Laurel Beeler gutted the case last June, she deferred ruling on the alleged violation of the federal Video Privacy Protection Act or VPPA, enacted in 1988 after a Washington, D.C., newspaper published the video-rental history of Supreme Court nominee Robert Bork.
     A summary judgment hearing is scheduled for Feb. 6, 2014.
     Hulu had said the class could not prove injury to establish standing, since that would require a recitation of watched videos and how third parties received this information.
     The VPPA permits disclosure to third parties as an "ordinary course of business," according to Hulu's brief filed in November by O'Melveny & Myers attorney Randall Edwards.
     In that brief, Hulu disputed the class's claims that it used the analytics service comScore and Facebook "like" buttons to store user data.
     In a new filing this week, Hulu's attorneys opposed the plaintiffs' motion for class certification.
     Attorney Robert Schwartz argued that each class member's claim would depend on individual issues related to his or her use of Hulu, and that the court should rule on pending summary judgment motions before deciding on class certification.
     "These issues cannot be resolved with common evidence," Schwartz wrote. "To preview just some of the individualized evidence on these questions, a survey of hulu.com users shows that up to 60 percent engaged in one or more blocking and clearing practices that would have prevented any disclosure of even the anonymous user ID. And Hulu does not know whether or when any user took such steps."
     The attorney also noted that many Hulu users do not use their actual names.
     "In fact, there are 753 Hulu users named 'Fake Name,' 644 named 'Homer Simpson,' and over 18,000 named 'John Doe,'" Schwartz wrote.
     Class certification is not appropriate because of the varying circumstance in different Hulu users' claims, the attorney argued.
     "Plaintiffs' motion must fail. It applies the wrong certification standard, relies on an unsupported legal theory, and makes no attempt to demonstrate how common evidence could possibly be used to prove liability on a class-wide basis," Schwartz wrote.