The Cookie Crumbles for Amazon Privacy Plaintiffs – Del Vecchio v. Amazon
[Post by Venkat Balasubramani]
Del Vecchio v. Amazon, C11-366-RSL (W.D. Wash.; Dec. 1, 2011)
Plaintiffs sued Amazon, alleging that Amazon’s use of “flash” cookies and certain browser “tokens” was misleading. In a putative class action, Del Vecchio asserted claims against Amazon under the Computer Fraud and Abuse Act, and the Washington Consumer Protection Act, along with claims for trespass and unjust enrichment. The court dismisses the lawsuit, and although it grants leave to amend, it sends a pretty clear message to plaintiffs that they face a high (and likely insurmountable) hurdle.
Trespass to Chattels: The court dismisses the trespass argument on the basis that trespass to chattels requires an allegation that the defendant’s actions interfered with a plaintiff’s property interest in a way that affects the physical condition or plaintiff’s use of the chattel, and plaintiffs failed to adequately make out this allegation.
Although demographic information is valued highly . . . the value of its collection has never been considered an economic loss to the subject. Demographic information is constantly collected on all consumers by marketers, mail-order catalogues and retailers . . . we are unaware of any court that has held the value of this collected information constitutes damage to consumers or unjust enrichment to collectors.
Plaintiffs (and their lawyers) who have brought the latest wave of cookie lawsuits must be feeling pretty discouraged at this point. They’ve tried every conceivable variation of every possible argument and have gotten nowhere in the courts. We will see if they have better luck on appeal.