Turn Wants Court To Reconsider Decision Reviving 'Supercookies' Lawsuit

Ad-tech company Turn is hoping to convince appellate judges to reconsider their recent decision reviving a privacy lawsuit centered on the company's alleged use of "supercookies."

Earlier this month, a three-judge panel of the 9th Circuit ruled that Turn, now owned by Amobee, was not entitled to have the lawsuit sent to arbitration. The decision reversed a ruling issued last year by U.S. District Court Judge Jeffrey White in the Northern District of California.

The ruling stemmed from allegations that Turn tracked Verizon wireless users via "headers" -- 50-character alphanumeric strings -- that the carrier previously injected into all unencrypted mobile traffic. Those headers enabled ad companies to compile profiles of users and serve them targeted ads. The headers, also known as “zombie” cookies, or "supercookies," allow ad companies to recreate cookies that users delete.

Turn, which recently settled Federal Trade Commission charges related to the headers, also was sued in federal court by Verizon customers Anthony Henson and William Cintron, who sought to bring a class-action.

The company argued that the matter should be sent to arbitration on the grounds that the consumers' allegations were closely connected to their agreements with Verizon. Those subscriber agreements call for arbitration of all disputes.

White agreed with Turn and sent the case to arbitration, ruling that questions raised by the matter "concern substantially interdependent and concerted conduct" between Turn and Verizon.

An appellate panel reversed that decision earlier this month, ruling that Turn wasn't entitled to benefit from Verizon's arbitration agreement with customers.

Late last week, Turn signaled that it will ask the 9th Circuit Court of Appeals for a new hearing in the matter.

"The published opinion in this case presents important questions with far-reaching effect," attorney Michael Rubin wrote in papers seeking a two-week extension of the deadline to request a new hearing. "Due to the significance and potentially widespread impact of this case, the decision to petition for rehearing ... requires careful analysis and deliberation."

The appellate judges extended the deadline until October 3.

Turn is likely to face an uphill battle in convincing the judges to reconsider the case, says Internet legal expert Venkat Balasubramani. "Reconsideration is definitely the exception," he says. "You have to show that something really went wrong."

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