Second Anti-Adware Lawsuit Survives Motion to Dismiss–Kerrins v. Intermix Media

By Eric Goldman

Kerrins v. Intermix Media, Inc., No. 2:05-cv-05408-RGK-SS (C.D. Cal. Jan. 10, 2006)

Blogging the latest developments in anti-adware/anti-spyware lawsuits has become a full-time job, which is why I’ve fallen behind. I’m now aware of 5 anti-adware class action lawsuits pending:

* Sotelo v. DirectRevenue

* Simios v. 180Solutions

* Michaeli v. eXact Advertising

* Consumer Advocates Rights Enforcement Society v. 180Solutions [sorry, I haven't had a chance to blog on this case yet, but you can find the complaint here]

* the newest one to emerge from the haze, Kerrins v. Intermix Media

All of this leaves me wondering–just how many of these anti-adware class action lawsuits are out there? I’m not even counting the FTC enforcement actions or any of the private litigation or government enforcement actions related to the Sony rootkit.

Back to the Kerrins case. On January 10, the judge ruled on Intermix Media’s motion to dismiss Kerrins’ putative class action. In a brief opinion, the court dismissed the unjust enrichment and California B&P 17200 claims.

However, the court refused to dismiss the trespass to chattels claim, saying that the “Plaintiff has alleged that Defendant’s adware damaged his existing software and reduced the efficiency of his computer system. Plaintiff has also alleged that removal of the adware requires users to spend time and to hire a computer specialist.”

Note that, in Intel v. Hamidi, the California Supreme Court were specifically rejected the latter two damages as non-actionable in common law trespass to chattels claims. Hamidi should be controlling precedent on this lawsuit, so it will be interesting to see if the court addresses Hamidi in future rulings.

The court also refused to dismiss the computer crime claim (Cal. Penal Code 502). Penal Code 502 is a quirky statute–like the old-line computer crimes statutes, it initially focused mostly on unauthorized access to/use of computer resources, but it has since transmogrified into a general anti-computer trespass statute with a civil cause of action. The court says that the plaintiff “alleges sufficient damage and interference to his computer system,” so this cause of action survives the dismissal motion as well.

In discussing unjust enrichment and trespass to chattels, the court cites to the Sotelo case–reinforcing the importance of the Sotelo case as a precedent for these follow-on anti-adware lawsuits.

As a result of this minute order, Kerrins’ trespass to chattels and computer crime causes of action will continue. (There may also be a third cause of action that survives–there is an internal inconsistency in the ruling, and the complaints and various motions/briefs are not in PACER). Of course, as with the Sotelo case, the plaintiffs have a lot more work to do before getting a payoff.

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