After a decision denying class certification last week, claims by Hulu users that their personal information was improperly disclosed to Facebook are limited to the individual named plaintiffs (at least for now, as the decision was without prejudice).

The plaintiffs alleged Hulu violated the federal Video Privacy Protection Act by configuring its website to include a Facebook “like” button.  This functionality used cookies that disclosed users’ information to Facebook.  But, the U.S. District Court for the Northern District of California credited expert evidence presented by Hulu that three things could stop the cookies from transmitting information: 1) if the Facebook “keep me logged in” feature was not activated; 2) if the user manually cleared cookies after his or her Facebook and Hulu sessions, or 3) if the user used cookie blocking or ad blocking software. 

In its decision, the court ruled that these methods of stopping disclosure of information rendered the proposed class insufficiently ascertainable.  To maintain a class action, a class must be sufficiently ascertainable by reference to objective criteria.  Plaintiffs argued that the class membership could be ascertained by submission of affidavits from each class member, but the court reasoned that individual subjective memories of computer usage may not be reliable, particularly given the availability of $2,500 statutory damages per person under the Video Privacy Protection Act.  Thus, the court found plaintiffs had not defined an ascertainable class.

Additionally, because an individual inquiry into whether each member of the putative class used any one of the methods to block disclosure of information would be required, the court found individual issues predominated and would preclude certification of the class as defined.  Hulu also argued the total potential damages were out of proportion to any actual damages suffered and thus violated due process, but the court noted that while the argument might have some merit, the issue was not ripe given the denial of class certification.

While the case, In re Hulu Privacy Litigation, can still continue on behalf of the named plaintiffs, the court left open the possibility of proceeding with subclasses or a narrower class definition.  Consequently, additional class certification practice is likely in this closely watched case.