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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Amazon Settles “Flash Cookie” Lawsuit

Posted in Advertising & Marketing, Litigation, Online, Privacy Policies

On Thursday, November 15, 2012, Judge Robert S. Lasnick of the Western District of Washington dismissed Del Vecchio v. Amazon, stating that the parties had reached a settlement, the details of which were not disclosed.  The suit had alleged (among other things) that Amazon used Flash cookies to backup and “respawn” browser cookies that plaintiffs had deleted, and thereby “circumvented” plaintiffs’ browser privacy controls.  The complaint (which was amended several times) included claims under the federal Computer Fraud and Abuse Act and the Washington Consumer Protection Act, as well as several common law claims. 

Prior to the settlement, Amazon had filed three separate motions to dismiss, and succeeded twice in getting major claims tossed out.  Amazon filed its initial motion to dismiss in May 2011, but eventually withdrew it after the court granted a request by plaintiffs to amend their complaint for the first time.  The court later granted Amazon’s motion to dismiss the first amended complaint in its entirety, citing plaintiffs’ failure to “establish any plausible harm.”  In June 2012, the key claims in the second amended complaint also were dismissed based on similar reasoning. 

The fact that this settlement was limited to the individual plaintiff suggests that Amazon’s strategy of vigorously defending the litigation appears to have brought it more success than some defendants in other “Flash cookie” lawsuits (such as QuantCast and Clearspring) who agreed to more sizeable class settlements early in their litigations.