Zombie Cookie Suit Won't Lie Down

With Halloween on the way, ad targeting company Turn will be looking nervously over its shoulder again after judges overturned an earlier decision regarding 'zombie cookies', and allowed a class action to proceed. The dispute looked to have been settled in January.

Turn and telecoms giant Verizon were the subject of a potential class action privacy lawsuit in February 2015 over their use of ad tracking tools including 'zombie' cookies, which re-established themselves after users deleted them. At the beginning of this year, Turn invoked an arbitration clause in the agreement between Verizon and its subscribers to settle with the FTC, without admitting fault, in order to avoid 'a lengthy and costly litigation'.

Under its own settlement, Verizon paid a fine of $1.35m and adopted a three-year compliance plan which included agreement that the FCC must approve its future use of any similar behavioral advertising programs.

However last month, according to www.lexology.com , three 9th Circuit judges rejected the decision by the district court which had made this settlement possible, ruling that Turn could not benefit from the arbitration clause because it was not a party to the Verizon agreement.

The original class action against Turn may proceed, said the 9th Circuit, because plaintiffs Anthony Henson and William Cintron (representing all New York Verizon Wireless subscribers) never alleged that Verizon colluded with Turn, but stated that 'Turn conducted its practices in secret, without Verizon's knowledge, consent, or approval'.