The U.S. District court for the Northern District of California denied plaintiffs’ motion for class certification because the proposed class did not satisfy Rule 23’s ascertainability and predominance requirements.  Plaintiffs’ class action complaint alleged that Hulu violated the Video Privacy Protection Act by disclosing video selections and “personally identifiable information” to third parties such as Facebook.  At the class certification hearing, the plaintiffs narrowed their  theory to the alleged wrongful disclosure of personal identifying information to Facebook by transmission of c_user cookies, which contain a Hulu user’s Facebook ID.  According to the court, by narrowing their theory, the plaintiffs limited the class to “registered Hulu users who at least once during the class period watched a video on hulu.com having used the same computer and web browser to log into Facebook in the previous four weeks using default settings.” 

The court first held that the plaintiffs failed to define a sufficiently ascertainable class as required for class certification.  The court found that, while a large group of users could be identified by cross-referencing Hulu and Facebook e-mail records, cross-referencing would not identify the individual class members, who were those users whose personal information was actually disclosed to Facebook.  Therefore, plaintiff needed to offer a method for identifying these particular users, and this “inquiry turned on whether the c_user cookie was sent to Facebook, which depends on a number of variables.”  For example, the c_user cookie would not have been transmitted if the user logged out of Facebook, cleared cookies, or used ad-blocking software.  However, the only method that the plaintiffs offered for identifying the individual class members was through the use of self-reporting affidavits.  In rejecting this method, the court held that because $2,500 per class member constituted a high dollar amount, “some form of verification beyond just an affidavit” was required.  The court also found that in this case, the affidavits would suffer from subjective memory issues and, based on the record, could not reliably establish whether a particular user logged out of Facebook, cleared cookies, or used ad-blocking software.  In addition, the court concluded that the $2,500 per class member created incentives for users to make a claim.  Therefore, the court found that plaintiffs did not satisfy the ascertainability requirement.   

Next, after analyzing the requirements of Rule 23(a), the court held that plaintiffs failed to meet Rule 23(b)(3)’s predominance requirement.  In so holding, the court found that “the substantial issues about remaining logged into Facebook and clearing and blocking cookies means that the court cannot conclude on this record that the common issues predominate over the individual ones.”  Accordingly, the court denied plaintiffs’ motion for class certification of a Rule 23(b)(3) class.  

In re Hulu Privacy Litig., No. 11-03764, slip op. (N.D. Cal. June 16, 2014).