• by Wendy Davis  @wendyndavis, August 7, 2012

Vibrant Media will argue that a privacy lawsuit stemming from the alleged Safari hack should be dismissed on the grounds that consumers weren't harmed, the company said in a recent letter to the judge presiding over the case.

"Fatal to all plaintiffs' claims, there are no allegations that plaintiffs suffered any cognizable injuries," attorneys for Vibrant wrote to U.S. District Court Judge Nicholas Garaufis in the Eastern District of New York.

Vibrant sent the letter in response to a potential class-action lawsuit filed in May by Web users Daniel Mazzone and Michelle Kusanto. They alleged that the company circumvented Safari's privacy settings, which block third-party tracking cookies by default.

The litigation stems from a report by Stanford grad student Jonathan Mayer that Vibrant -- along with Google, PointRoll and the WPP's Media Innovation Group -- used a workaround to bypass the Safari browser's settings by setting tracking cookies. All of the companies were then able to serve ads to Web users based on their Internet activity.

Google, Vibrant Media and PointRoll confirmed Mayer's report when it came out in February, and said they had stopped tracking Safari users or would soon do so. WPP has never commented. None of the companies were accused of connecting the cookie-based data they allegedly obtained to users' names or other personally identifiable information.

The consumers who sued Vibrant allege that their browsing data was valuable in itself. As evidence, they referred to Google's decision to allow pay users who allow the company to track them with up to $25 in gift cards. They also say that the tracking cookies caused emotional distress.

Vibrant counters in its letter to the presiding judge that those allegations aren't sufficient to warrant further proceedings. The company told Garaufis that it plans to soon file papers seeking dismissal of the case, and asked him to delay other deadlines in the lawsuit while that motion is pending. Garaufis granted that request late last month.

Vibrant isn't the only company to land in court, due to the Safari hack. PointRoll, WPP and Google also were hit with potential class-action lawsuits over the matter.

Google additionally appears to be facing a Federal Trade Commission enforcement action. Reports surfaced recently that Google agreed to a $22.5 million settlement with the FTC, but nothing has yet been publicly announced.

The FTC has more ammunition against Google than the other companies, because Google explicitly instructed users that the Safari browser blocked tracking cookies. By making that representation, and then circumventing Safari's privacy settings, the search giant allegedly violated a 2011 consent decree prohibiting the company from misrepresenting its privacy practices.