Because the matter can be decided based on the parties’ memoranda, the complaint, and thebalance of the record, Defendant’s request for oral argument is DENIED.
ORDER GRANTING IN PART DEFENDANT’S THIRD MOTION TO DISMISS - 2
chattels claim. The Court therefore GRANTS Defendants motion to dismiss with prejudice as tothose claims.
The Court also finds it very likely that Defendant’s “Conditions of Use andPrivacy Notice” disclose sufficient information to negate Plaintiffs’ Washington ConsumerProtection Act (“CPA”) and unjust enrichment claims (as well as his CFAA and trespass tochattels claims). Nevertheless, the Court will indulge Plaintiffs’ request to allow it anopportunity to present all the material pertinent to the issue. Fed. R. Civ. P. 12(d). The partiesare directed to meet and confer and file within 30 days of the date of this Order a joint notice thatsets forth a summary judgment briefing schedule on the “authorization” issue. Limiteddiscovery concerning the availability and location of Defendant’s terms on its web site and eachPlaintiff’s awareness of those terms and use of the site would seem to be appropriate.
As the Court previously explained, this is a case of cookies. Dkt. # 49. Not the kindmade with sugar and flour, but those alphanumeric identifiers that are transferred from a web siteto a visitor’s hard drive through the visitor’s web browser when a web site is visited. Dkt. # 50-2 at 1; accord Bose v. Interclick, Inc., No. 10-cv-9183, 2011 WL 4343517, at *1 (S.D.N.Y. Aug.17, 2011) (discussing cookies). Web sites use these internet cookies to “gather informationabout a computer user’s internet habits” and “associate ‘browsing history information’ withparticular computers.” Bose, 2011 WL 4343517, at *1. Typically, the transfer of cookies isautomatic. Web site visitors who do not desire cookies and their consequences must eitherdelete them as they are received or use software to block their acceptance. E.g., id.As Plaintiffs allege, however, refusing Defendant’s cookies was a complicated task.They complain that Defendant placed standard browser cookies on Plaintiffs’ computers againsttheir wishes by “exploiting” a known frailty in the cookie-filtering function of Microsoft’sInternet Explorer browser software. SCASC (Dkt. # 61) at ¶¶ 4–6 (describing browser cookies);
Case 2:11-cv-00366-RSL Document 72 Filed 06/01/12 Page 2 of 17