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Facebook Data Tracking Actions Consolidated In Calif. (Law360)

By Vin Gurrieri

Eleven class actions accusing Facebook Inc. of improperly tracking the Internet activity of its users after they had logged out of their accounts will be consolidated in the Northern District of California, a judicial panel said Wednesday.

The U.S. Judicial Panel on Multidistrict Litigation said the 11 cases, which were pending across 10 districts, will be consolidated in the Northern District of California — 15 miles away from Facebook's Silicon Valley headquarters, according to the order.

"Centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation," the MDL panel said.

The class actions are based on a Facebook practice that installs files known as "cookies" — small pieces of data sent between Internet browsers and websites — on its users' computers. The suits allege the company was retaining the data despite assuring users that cookies identifying a person's particular account are deleted after a logout.

The first bid to consolidate the cases was filed in October 2011 by the plaintiffs in the proposed class action Davis v. Facebook. The Davis suit was launched after a blogger showed that Facebook had the ability to know at any time if a person visited a Web page with a Facebook like button or share button, even if that person had logged out of the service

In a brief supporting the consolidation, attorneys in the Davis suit said that Facebook had violated its own user agreement by making new users provide "sensitive personal information to Facebook upon registration .. [and] accept numerous Facebook cookies, which track browsing history."

"Facebook uses the information to generate approximately $4 billion of revenue annually for the company," the class members said.

Other class actions that made identical claims against Facebook and that are now parties in the MDL litigation were filed in California, Texas, Illinois, Arizona, Missouri, Kansas, Alabama, Kentucky, Mississippi and Louisiana, according to the judicial panel's order.

Neither the plaintiffs nor Facebook opposed the judicial panel's ruling to consolidate the cases, the order said.

Facebook did request, over plaintiff opposition, that the litigation be renamed "In re: Facebook Cookies Litigation," but the panel declined the suggestion, saying that "doing so would imply an unduly restrictive scope on the litigation."

The judicial panel's order noted that 16 cases not included as part of the consolidation, including nine from California federal court, were identified as potential tagalong actions, but that "the plaintiffs contend that certain of these actions are not related and should not be assigned to the MDL."

Facebook says it will keep on battling the improper tracking claims.

"We continue to believe that these cases are without merit, and we will fight them vigorously," said Facebook representative Andrew Noyes.

Attorneys for the plaintiffs were not immediately available for comment Thursday.

The recent rash of data tracking lawsuits has also made Facebook the targets of congressional scrutiny, namely by representatives charged with overseeing the company's privacy policies.

Reps. Ed Markey, D-Mass., and Joe Barton, R-Texas, leaders of the Bipartisan Congressional Privacy Caucus, in January criticized Facebook's answers to their questions about the company's attempt to patent a data tracking system using cookies, saying the company seemed to be saying one thing about its plans for the technology while doing another.

Markey and Upton began their inquiry after a report published in November 2011 that Facebook had used cookie tracking technology to compile a list of the Web pages its members had visited in the previous 90 days, as well as a list of websites that millions of nonmembers visited after they had visited a Facebook page.

The proposed Davis class is represented by David A. Straite and Ralph N. Sianni of Sianni & Straite LLP, Stephen G. Grygiel, John E. Keefe Jr. and Stephen Sullivan Jr. of Keefe Bartels LLC, and Barry R. Eichen and Daryl L. Zaslow of Eichen Crutchlow Zaslow & McElroy LLP.

Facebook is represented in the Davis case by Matthew Dean Brown, Jeffrey Gutkin and Michael Graham Rhodes of Cooley LLP.

The Davis case is Davis et al. v. Facebook Inc., case number 5:11-cv-04834, in the U.S. District Court for the Northern District of California.

The MDL is In re: Facebook Internet Tracking Litigation, case number MDL No. 2314, in the U.S. District Court for the Northern District of California.

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