Hulu Subscribers Seek Class Certification

     SAN FRANCISCO (CN) – Six Hulu subscribers who claim the website illegally disclosed their viewer data to Facebook moved to certify their federal class action.
     In their amended complaint, Joseph Garvey et al. claim Hulu “repurposed” its browser cache so that marketing analyst services could store their private data.
     Hulu claimed in May 2012 that the class had abandoned six of its seven claims dealing with privacy, computer fraud and negligence, and that the Northern District of California should dismiss those claims with prejudice.
     Much of the dispute centers on the federal Video Privacy Protection Act (VPPA), enacted in 1988 after a Washington, D.C., newspaper published the video rental history of Supreme Court nominee Robert Bork.
     As for the final claim under the VPPA, Hulu claimed 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 by O’Melveny & Myers attorney Randall Edwards.
     Though U.S. Magistrate Judge Laurel Beeler of San Francisco largely dismissed the case in June 2012, she deferred ruling on the VPPA claim pending a determination of standing.
     In a new filing this week, the plaintiffs moved to certify two classes of plaintiffs whose information was given to Facebook and the analytics company comScore.
     “Hulu may try to deny the reality of VPPA’s language and Hulu’s own website code, but it cannot escape the simple fact that it broke the law, repeatedly,” plaintiffs’ attorney Scott Kamber wrote. “Hulu knew it identified its users and their video selections to third parties.”
     In the memorandum in support of the motion, and in other filings in the case, specific information about the code Hulu uses for its site is blacked out.
     The plaintiffs asked the court to certify two classes because they satisfy the four prerequisites: numerosity, commonality, typicality and adequacy.
     A hearing on the motion to certify is scheduled for Dec. 19 in Judge Beeler’s court.

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