One of several lawsuits brought against companies for using cookies to track and collect user data has recently been dismissed. Specifically, the case of LaCourt v. Specific Media, filed by several consumers in the Central District of California, alleging that interactive media company Specific Media used flash cookies to track and collect their personal information was dismissed for failure to allege damage. In California, the court requires a minimum showing of $5,000 in damages to sustain a claim under the fraud statute, but the required damages allegation was not included in the complaint. The court has granted the plaintiffs the ability to re-file the complaint to explicitly state that they were damaged in the amount of $5,000 due to the collection of their information with flash cookies.

Flash cookies are a type of cookie that works with Adobe’s Flash players and are able to save a small file on a user’s hard drive containing all of the information in a tracking cookie. As many computer users are aware that they can easily clear and block most tracking cookies from accessing their computer, they may be surprised to find that the flash cookies are not deleted when other cookies are deleted as these cookies are not housed in the browser’s temporary files. Therefore, these cookies are more concerning to experts because whereas other cookies may be cleared, the personal information collected and stored over a long period of time will not be cleared when it is tracked with flash cookies, which will simply come back to life after the cookie-clearing process.

As the suit was dismissed without prejudice, the plaintiffs have the court’s permission—and have stated their intentions—to re-file the suit. They believe that Specific Media has taken advantage of their privacy and that their personal information is valuable. They maintain that Specific Media engaged in computer fraud by tracking their online movement. Specific Media continues to deny ever using flash cookies and considers the suit meritless.

As this lawsuit is only one of many, all companies that engage consumers through the Internet should be aware of the rash of lawsuits such as this one and the growing concern over the use of cookies to track and store user information.

Arent Fox is continuing to monitor issues relating to advertising and privacy. For additional information related to cookies, please see our previous alert. Please contact Anthony V. Lupo, Sarah L. Bruno, or Eva J. Pulliam with questions.

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Sarah L. Bruno
bruno.sarah@arentfox.com
202.775.5760

Eva Pulliam
pulliam.eva@arentfox.com
202.857.6323