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In Re Nickelodeon Consumer Privacy Litig

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In Re Nickelodeon Consumer Privacy Litig No Shepard’s Signal™ As of: July 7, 2014 1:09 PM EDT In re Nickelodeon Consumer Privacy Litig. United States District Court for the District of New Jersey July 2, 2014, Decided; July 2, 2014, Filed MDL No. 2443 (SRC); Civil Action No. 12-07829; Civil Action No. 13-03755; Civil Action No. 13-03729; Civil Action No. 13-03757; Civil Action No. 13-03731; Civil Action No. 13-03756 Reporter: 2014 U.S. Dist. LEXIS 91286 IN RE NICKELODEON CONSUMER PRIVACY ATTORNEY, COUNSEL NOT ADMITTED TO LITIGATION. THIS DOCUMENT RELATES TO: THE USDC-NJ BAR, BARTIMUS FRICKLETON CONSOLIDATION ACTION. ROBERTSON & GORNY PC, LEAWOOD, KS; MARY D. WINTER, LEAD ATTORNEY, COUNSEL NOT Notice: NOT FOR PUBLICATION ADMITTED TO USDC-NJ BAR, BARTIMUS FRICKLETON ROBERTSON & GORNY, Core Terms [*2] JEFFERSON CITY, MO. video, user, privacy, intercept, wiretap, disclosure, For STEPHANIE FRYAR, Plaintiff in 13-3755 website, cookies, online, consumer, electronic (2:12-cv-07829-SRC-CLW), Plaintiff: Adam Q Voyles, communication, service provider, cause of action, register, LEAD ATTORNEY, MDL, Lubel Voyles LLP, Houston, gender, sites, personal information, unjust enrichment, TX. anonymous, intrusion, aggrieve, dismissal with prejudice, civil action, videotape, seclusion, watch, advertize, For T.M., Plaintiff in 13-3756 highball, internet, third-party (2:12-cv-07829-SRC-CLW), Plaintiff: KEVIN P. GREEN, LEAD ATTORNEY, THOMAS P. ROSENFELD, Counsel: [*1] For CAF AND CTF, MINOR CHILDREN COUNSEL NOT ADMITTED TO USDC-NJ BAR, BY THEIR FATHER, ANTHONY R. FIORE, JR., MP, A GOLDENBERG HELLER ANTOGNOLI & ROWLAND MINOR CHILD BY HIS FATHER, MICHAEL POND, PC, EDWARDSVILLE, IL; MARK C. GOLDENBERG, TP, A MINOR CHILD BY HER MOTHER, TIFFANY LEAD ATTORNEY, GOLDENBERG HELLER PARROT, AV, A MINOR CHILD BY HIS FATHER, ANTOGNOLI & ROWLAND PC, EDWARDSVILLE, PAUL VOGEL (2:12-cv-07829-SRC-CLW), Plaintiffs: IL. BARRY R. EICHEN, LEAD ATTORNEY, Eichen Crutchlow Zaslow & McElroy, LLP, EDISON, NJ; MARY For L.G. (2:12-cv-07829-SRC-CLW), Plaintiff: D. WINTER, COUNSEL NOT ADMITTED TO KHALDOUN AMED BAGHDADI, LEAD ATTORNEY, USDC-NJ BAR, BARTIMUS FRICKLETON COUNSEL NOT ADMITTED TO USDC-NJ BAR, ROBERTSON & GORNY, JEFFERSON CITY, MO. WALKUP MELODIA KELLY & SCHOENBERGER, SAN FRANCISCO, CA. For K.T., Plaintiff in 13-3729 (2:12-cv-07829-SRC-CLW), Plaintiff: Douglas A. Campbell, LEAD ATTORNEY, For VIACOM, INC. (2:12-cv-07829-SRC-CLW), Campbell & Levine, Pittsburgh, PA; FREDERICK Defendant: BRUCE P. KELLER, LEAD ATTORNEY, DONALD RAPONE, LEAD ATTORNEY, COUNSEL DEBEVOISE & PLIMPTON, NEW YORK, NY; SETH J. NOT ADMITTED TO USDC-NJ BAR, CAMPBELL & LAPIDOW, LEAD ATTORNEY, BLANK ROME, LLP, LEVINE LLC, PITTSBURGH, PA. WOODLAND FALLS CORPORATE PARK, CHERRY HILL, NJ; STEPHEN M. ORLOFSKY, LEAD For NJ, Plaintiff in 13-3731 (2:12-cv-07829-SRC-CLW), ATTORNEY, RACHEL JANE GALLAGHER, BLANK Plaintiff: Andrew Lyskowski, LEAD ATTORNEY, ROME LLP, PRINCETON, NJ. Bergmanis Law Firm, LLC, Camdenton, MO; EDWARD D. ROBERTSON , III, LEAD ATTORNEY, COUNSEL For GOOGLE, INC. (2:12-cv-07829-SRC-CLW), NOT ADMITTED TO USDC-NJ BAR, BARTIMUS Defendant: JEFFREY J. GREENBAUM, LEAD FRICKELTON ROBERTSON & GORNY PC, ATTORNEY, JOSHUA N. HOWLEY, SILLS CUMMIS & LEAWOOD, MK; JAMES P. FRICKLETON, LEAD GROSS P.C., NEWARK, NJ; TONIA O. KLAUSNER, Page 2 of 16 2014 U.S. Dist. LEXIS 91286, *2 LEAD ATTORNEY, WILSON SONSINI GOODRICH & For Viacom Inc. (2:13cv3756), Defendant: Gail Lees, ROSATI, NEW YORK, NY. LEAD ATTORNEY, Gibson, Dunn & Crutcher, LLP, Los Angeles , CA. For Stephanie Fryar, [*3] as Next Friend of the Minor Children, Johnny Doe #1 and Johnny Doe #2 For Google Inc (2:13cv3756), Defendant: John C. Roberts, (2:13cv3755), Plaintiff: Adam Q Voyles, Lubel Voyles Wilson Sonsini, et al., Seattle , WA. LLP, Houston , TX. Judges: STANLEY R. CHESLER, United States District For K. T., a minor child, individually, and on behalf of all Judge. others similarly situated (2:13cv3729), Plaintiff: Douglas Opinion by: STANLEY R. CHESLER A. Campbell, LEAD ATTORNEY, Campbell & Levine, Pittsburgh , PA; FREDERICK DONALD RAPONE, COUNSEL NOT ADMITTED TO USDC-NJ BAR, Opinion Campbell & Levine Llc, Pittsburgh , PA. CHESLER, District Judge For L.G., a minor, on behalf of herself and others similarly The Plaintiffs in this multidistrict consolidated class action situated, by and through her Next Friend MARY lawsuit are children younger than thirteen who allege that ″ ″ BURT-GODWIN (2:13cv3757), Plaintiff: MICHAEL Defendants Viacom Inc. and Google Inc. ( Viacom and ″ ″ ″ ″ ALBERT KELLY, LEAD ATTORNEY, KHALDOUN Google and, collectively Defendants ) have violated AMED BAGHDADI, COUNSEL NOT ADMITTED TO their privacy rights, in contravention of federal law and the USDC-NJ BAR, Walkup Melodia Kelly & Schoenberger, laws of California and [*5] New Jersey. This matter is before the Court on the Defendants’ motions to dismiss the San Francisco , CA. Master Consolidated Class Action Complaint (″MCC″), For Viacom Inc. (2:13cv3757), Defendant: S. Ashlie filed pursuant to Federal Rules of Civil Procedure 12(b)(1) Beringer, LEAD ATTORNEY, Gibson Dunn & Crutcher and 12(b)(6). [Docket Entries 43 & 44.] Plaintiffs have LLP, Palo Alto , CA; GAIL E. LEES, COUNSEL NOT opposed [Docket Entry 52], and the Court has opted to rule on the parties’ submissions, and without oral argument. ADMITTED TO USDC-NJ BAR, Gibson, Dunn & SeeFed. R. Civ. P. 78. For the foregoing reasons, the Court Crutcher Llp, Los Angeles , CA; Joshua Aaron Jessen, finds that the MCC fails to state a claim upon which relief Gibson Dunn & Crutcher LLP, Irvine , CA. can be granted. Counts II, III, IV, and VII are dismissed For NJ (2:13-cv-03731-SRC-CLW), Plaintiff: EDWARD with prejudice. Count I is dismissed with prejudice as to D. ROBERTSON , III, COUNSEL NOT ADMITTED TO Google, and without prejudice as to Viacom. Counts V and USDC-NJ BAR, BARTIMUS FRICKELTON VI are dismissed without prejudice as to both Defendants. ROBERTSON & GORNY PC, LEAWOOD, MK; JAMES I. Background P. FRICKLETON, COUNSEL NOT ADMITTED [*4] TO USDC-NJ BAR, BARTIMUS FRICKLETON Viacom owns and operates three websites geared towards ROBERTSON & GORNY PC, LEAWOOD, KS; MARY children — Nick.com, Nickjr.com, and Neopets.com. ″ ″ ″ D. WINTER, COUNSEL NOT ADMITTED TO Viacom encourage[s] users of these websites to register ″ USDC-NJ BAR, BARTIMUS FRICKLETON and establish profiles on these sites. (See MCC ¶ 85.) ROBERTSON & GORNY, JEFFERSON CITY, MO; Viacom collects certain information about users who Andrew Lyskowski, Bergmanis Law Firm, LLC, register on its sites, including gender and birthdate; Camdenton, MO. Viacom then assigns a code name to each discrete user based on that user’s gender and age — allegedly called (by For T. M., as Next Friend of Minor Child, R.M., Viacom internally) the ″rugrat″ [*6] code. (Id. at ¶ 89).1 individually and on behalf of all others similarly situated Children who register for accounts on Viacom’s sites also (2:13cv3756), Plaintiff: KEVIN P. GREEN, THOMAS P. create ″unique″ profile names that are tied to each child’s ROSENFELD, COUNSEL NOT ADMITTED TO ″profile page.″ (Id. at ¶ 90.) Each named Plaintiff in this USDC-NJ BAR, Goldenberg Heller Antognoli & Rowland consolidated action is a registered user of one or more of Pc, Edwardsville , IL; MARK C. GOLDENBERG, the Viacom websites. (See id. at ¶ 4.) GOLDENBERG HELLER ANTOGNOLI & ROWLAND Children who use these Viacom websites can stream PC, Edwardsville , IL. videos or play video games on them — it is unclear from 1 ″Rugrat″ is both a colloquial term for a child or toddler and also the name of an animated television series that aired on Nickelodeon in the 1990s and 2000s. The rugrat codes provided as examples in the MCC — ″Dil,″ for a six-year-old boy, and ″Lou,″ for a twelve-year-old boy — are names of characters from that show. Page 3 of 16 2014 U.S. Dist. LEXIS 91286, *6 the MCC whether a user must be registered on a Viacom viewing histories and the details of their Internet site before watching a video or playing a game. communications with″ the Viacom sites. (Id. at ¶ 77.) Nevertheless, the MCC alleges that the act of viewing a Google’s cookies also assign to each Plaintiff a ″unique video or playing a video game creates an ″online record,″ numeric or alphanumeric identifier″ that becomes which Viacom collects and later disseminates to Google, ″connected to″ the information Viacom discloses to who collects and compiles it. (See id. at ¶¶ 96-101.) Google about that Plaintiff — namely, the username, According to the MCC, the ″video viewing″ record is a gender, birthdate, IP address, etc. (See id. at ¶ 82.) The long string of alphanumeric characters that contains two information is used by Google for [*9] the same reason relevant pieces of information — the name [*7] of the that Viacom uses it — ″to sell targeted advertising″ based video ″requested″ by the website user and the ″rugrat″ upon Plaintiffs’ ″individualized web usage, including code that describes the age and gender of the user. (See id. videos requested and obtained.″ (See id. at ¶ 84.) at ¶¶ 98-99.) In summary, the MCC alleges that Plaintiffs visit certain Before all of this happens, however, Viacom has placed a Viacom-owned websites and willingly provide Viacom text file — the aforementioned ″cookie″ — on Plaintiffs with their gender and age when they register as users of computers; this is done without Plaintiffs consent, or the the sites. While this is happening, Viacom places a text file consent of their parents. (Id. at ¶ 72.) This cookie allows (″cookie″) on Plaintiffs’ computers without their consent Viacom to acquire certain information — in addition to or that of their parents; this text file allows Viacom to username, gender, and birthdate collected at the time of collect certain information about the computer that the registration — about each Plaintiff ″who [is] a registered Plaintiff is using and what the Plaintiff does while on user of Viacom’s children’s websites.″ (See id.
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