Judge Tosses Most|of Hulu Class Action

     SAN FRANCISCO (CN) – A federal magistrate judge tossed most claims from a class that said Hulu illegally discloses their viewing data to third parties.
     In their amended class action complaint, six Hulu subscribers said the video site “repurposed” its browser cache so a marketing analyst service called KISSmetrics could store their private data.
     The class claimed Hulu also shared their private viewing choices with Facebook, Google Analytics, and other online market research and ad companies.
     “Hulu’s online privacy policy is misleading in that it does not disclose its use of aggressive, rogue exploits of plaintiffs’ and class members’ computer software to engage in widespread tracking and information sharing,” the complaint states.
     The class claims that Hulu’s actions “are so outside the boundaries of reasonable expectations that even industry experts had not previously observed these exploits ‘in the wild,’ that is, in actual use on websites available to the public.”
     The class claimed they suffered losses from the illegal data exploitation because their personal information has economic value.
     Hulu sought dismissal, which Magistrate Judge Laurel Beeler largely granted in an order Monday.
     Much of the dispute centered 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.
     In a filing in May, Hulu claimed that the class had abandoned six of its seven claims dealing with privacy, computer fraud and negligence, and that the court should dismiss those claims with prejudice.
     The other claim under the VPPA should be dismissed for a number of reasons, O’Melveny & Myers attorney Randall Edwards wrote. He said the plaintiffs cannot prove injury and thus cannot establish standing, because they have not explained which videos they watched, or how their information was disclosed to third parties.
     The VPPA permits disclosure to third parties as an “ordinary course of business,” the brief states.
     Judge Beeler deferred ruling on the motion to dismiss the VPPA claim, to determine if the class has standing under that law.
     Beeler found the plaintiffs had proved they had standing to sue, but Hulu argued that the Supreme Court decision in Edwards v. First American Corporation will resolve the issue in its favor.
     In Edwards, the Supreme Court considered whether a purchaser of real estate settlement services had standing to sue under Article III of the Constitution. The Court heard arguments in the case in November 2011.
     Beeler ordered Hulu to submit a supplemental brief by July 19, and the class to submit a response by Aug. 2.
     She scheduled more arguments for Aug. 23, and gave the parties the option to alter the schedule depending on the timing of the Edwards ruling.

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