Today the District Court for the Northern District of Alabama dismissed the class action lawsuit filed against our client, Cable One, Inc., for lack of subject matter jurisdiction because the named plaintiff lacked standing. The litigation arose out of a limited test of NebuAd Inc.’s “deep packet inspection” technology, which was used to create anonymous, non-sensitive interest categories for subscribers for the purpose of serving targeted ads. Of six putative class actions filed against Internet service providers in connection with tests of this NebuAd technology, this is the only one to be dismissed to date.
Cable One initially was sued in the Northern District of California along with NebuAd, Inc., and five other ISPs—Bresnan Communications, CenturyTel, Embarq, Knology, and Wide Open West. Covington’s team of Simon Frankel and Mali Friedman secured the dismissal of that complaint against Cable One in October 2009 for lack of personal jurisdiction.
Plaintiff’s counsel then filed a complaint against Cable One in Alabama (where Cable One was alleged to have allowed NebuAd to conduct its test). In the course of responding to discovery, plaintiff’s counsel stipulated to dismiss with prejudice the Computer Fraud and Abuse Act (“CFAA”) claim and related common law claims—the first dismissal of a CFAA claim in any lawsuit involving the NebuAd technology. The Covington team of Eric Bosset and Andrew Bernie, along with Frankel and Friedman, also established in discovery that the named plaintiff lacked standing to sue on the remaining claim brought under the Electronic Communications Privacy Act (“ECPA”). The court disposed of the action on Covington’s motion to dismiss today.
For more information on private actions challenging online data collection practices, please see our recent publication in the Intellectual Property and Technology Law Journal and E-Alert.