{"id":1795,"date":"2024-10-06T09:02:53","date_gmt":"2024-10-06T13:02:53","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=1795"},"modified":"2024-10-06T09:02:54","modified_gmt":"2024-10-06T13:02:54","slug":"florida-federal-court-refuses-to-certify-adtech-class-action","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2024\/10\/06\/florida-federal-court-refuses-to-certify-adtech-class-action\/","title":{"rendered":"Florida Federal Court Refuses To Certify Adtech Class Action"},"content":{"rendered":"
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By Gerald L. Maatman, Jr., Justin R. Donoho, and Nathan K. Norimoto<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/em><\/strong>\u00a0 On October 1, 2024, Judge Robert Scola of the U.S. District Court for the Southern District of Florida denied <\/a>class certification in a case involving website advertising technology (\u201cadtech\u201d) in Martinez v. D2C, LLC, 2024 WL 4367406 (S.D. Fla. Oct. 1, 2024).\u00a0 The ruling is significant as it shows that plaintiffs who file class action complaints alleging improper use of adtech cannot satisfy Rule 23\u2019s numerosity requirement merely by showing the presence of adtech on a website and numerous visitors to that website.\u00a0 The Court\u2019s reasoning in denying class certification applies not only in adtech cases raising claims brought under the Video Privacy Protection Act (\u201cVPPA\u201d), like this one, but also to other adtech cases raising a wide variety of other statutory and common law legal theories.<\/em><\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

This case is one of the hundreds of class actions that plaintiffs have filed nationwide alleging that Meta Pixel, Google Analytics, and other similar software embedded in defendants\u2019 websites secretly captured plaintiffs\u2019 web browsing data and sent it to Meta, Google, and other online advertising agencies.  This software, often called website advertising technologies or \u201cadtech\u201d is a common feature on millions of corporate, governmental, and other websites in operation today.<\/p>\n\n\n\n

In Martinez<\/em>, the plaintiffs brought suit against D2C, LLC d\/b\/a Univision NOW (\u201cUnivision\u201d), an online video-streaming service.  The parties did not dispute, at least for the purposes of class certification, that: (A) Univision installed the Meta Pixel on its video-streaming website; (B) Univision was a \u201cvideo tape service provider\u201d and the plaintiffs and other Univision subscribers were \u201cconsumers\u201d under the VPPA, thereby giving rise to liability under that statute if the plaintiffs could show Univision transmitted their personally identifiable information (PII) such as their Facebook IDs along with the videos they accessed to Meta without their consent; (C) none of the plaintiffs consented; and (D) 35,845 subscribers viewed at least one video on Univision\u2019s website.  Id. <\/em>at *2. <\/p>\n\n\n\n

The plaintiffs moved for class certification under Rule 23.  The plaintiffs maintained that that at least 17,000 subscribers, including (or in addition to) them, had their PII disclosed to Meta by Univision.  Id. <\/em>at *3.  The plaintiffs reached this number upon acknowledging \u201cat least two impediments to a subscriber\u2019s viewing information’s being transmitted to Meta: (1) not having a Facebook account; and (2) using a browser that, by default, blocks the Pixel.\u201d  Id. <\/em>at *6.  Thus, the plaintiffs pointed to \u201cstatistics regarding the percentage of people in the United States who have Facebook accounts (68%) and the testimony of their expert … regarding the percentage of the population who use a web browser that would not block the Pixel transmission (70%), to conclude, using \u2018basic math,\u2019 that the class would be comprised of \u2018at least approximately 17,000 individuals.\u2019\u201d Id. <\/em>at *6.In contrast, Univision maintained that the plaintiffs failed to carry their burden of showing that even a single subscriber had their PII disclosed, including the three named plaintiffs.  Id. <\/em>at *3.<\/p>\n\n\n\n

The Court\u2019s Decision<\/strong><\/p>\n\n\n\n

The Court agreed with Univision and held that the plaintiffs did not carry their burden of showing numerosity.<\/p>\n\n\n\n

First, the Court held that the plaintiffs\u2019 reliance on statistics regarding percentage of people who have Facebook accounts was unhelpful, because \u201cbeing logged in<\/em> to Facebook\u201d\u2014not just having an account\u2014\u201cis a prerequisite to the Pixel disclosing information.\u201d  Id. <\/em>at *7 (emphasis in original).  Moreover, \u201cbeing simultaneously logged in to Facebook is still not enough to necessarily prompt a Pixel transmission: a subscriber must also have accessed the prerecorded video on Univision’s website through the same web browser and device through which the subscriber (and not another user) was logged into Facebook.\u201d  Id.<\/em><\/p>\n\n\n\n

Second, the Court held that the plaintiffs\u2019 reliance on their proffer that 70% of people use Google Chrome and Microsoft Edge, which allow Pixel transmission \u201cunder default configurations,\u201d failed to account for all of the following \u201cactions a user can take that would also block any Pixel transmission to Meta: enabling a browser’s third-party cookie blockers; setting a browser’s cache to \u2018self-destruct\u2019; clearing cookies upon the end of a browser session; and deploying add-on software that blocks third-party cookies.\u201d  Id.<\/em><\/p>\n\n\n\n

In short, the Court reasoned that the plaintiffs did not establish \u201cthe means to make a supported factual finding, that the class to be certified meets the numerosity requirement.\u201d  Id. <\/em>at *9.  Moreover, the Court found that the plaintiffs had not demonstrated that \u201cany<\/em>\u201d PII had been disclosed, including their own.  Id. <\/em>(emphasis in original).In reply, the plaintiffs attempted to introduce evidence supplied by Meta that one of the plaintiffs\u2019 PII had been transmitted to Meta.  Id.<\/em>  The court refused to consider this new information, supplied for the first time on reply, and further found that even if it were to consider the new evidence, \u201cthis only gets the Plaintiffs to one <\/em>\u2018class member.\u2019\u201d  Id. <\/em>at *10 (emphasis in original).<\/p>\n\n\n\n

Finding the plaintiffs\u2019 failure to satisfy the numerosity requirement dispositive, the Court declined to evaluate the other Rule 23 factors.  Id. <\/em>at *5.<\/p>\n\n\n\n

Implications For Companies<\/strong><\/p>\n\n\n\n

This case is a win for defendants of adtech class actions.  In such cases, the Martinez<\/em> decision can be cited as useful precedent for showing that the numerosity requirement is not met where plaintiffs put forth only speculative evidence as to whether the adtech disclosed plaintiffs\u2019 and alleged class members\u2019 PII to third parties.  The Court\u2019s reasoning in Martinez<\/em> applies not only in VPPA cases but also other adtech cases alleging claims for invasion of privacy, under state and federal wiretap acts, and more.  All these legal theories have adtech\u2019s transmission of the PII to third parties as a necessary element.  In sum, to establish numerosity, plaintiffs must demonstrate, at a minimum, that class members were logged into their own adtech accounts at the time they visited the defendants\u2019 website, using the same device and browser for the adtech and the visit, using a browser that did not block the transmission by default, and not deploying any number of browser settings and add-on software that would have blocked the transmission.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Justin R. Donoho, and Nathan K. Norimoto Duane Morris Takeaways:\u00a0 On October 1, 2024, Judge Robert Scola of the U.S. District Court for the Southern District of Florida denied class certification in a case involving website advertising technology (\u201cadtech\u201d) in Martinez v. D2C, LLC, 2024 WL 4367406 (S.D. Fla. Oct. … <\/p>\n

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