• by Wendy Davis  @wendyndavis, October 9, 2017

Ad company Turn is urging appellate judges to rethink their recent decision to allow consumers to pursue a privacy lawsuit stemming from the company's alleged use of "supercookies."

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

Turn now says the panel engaged in "judicial overreach." The company is seeking a new hearing in front of at least 11 of the Circuit Court judges.

The battle centers on 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.

Verizon originally predicted that ad networks weren't likely to draw on the headers in order to compile profiles of Web users. But in January of 2015, researcher Jonathan Mayer reported that Turn drew on Verizon's headers to collect data and send targeted ads to mobile users who delete their cookies.

Turn initially acknowledged Mayer's report, and defended use of the tracking headers. Several days later, the company changed its position and stopped using the tracking headers. 

Verizon customers Anthony Henson and William Cintron subsequently brought a class-action complaint against Turn in federal court.

Turn 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. The judge's order stayed the allegations -- meaning that the claims technically remained pending in federal court, although as a practical matter they had been sent to an arbitrator.

Henson and Cintron then asked the 9th Circuit to issue a "writ of mandamus" to compel White to vacate the arbitration order. The Federal Arbitration Act prohibits appeals of arbitration orders before the claims are dismissed. But that prohibition does not apply to writs of mandamus.

Last month, a three-judge panel of the 9th Circuit sided against Turn, ruling that the company wasn't entitled to benefit from Verizon's arbitration agreement with customers.

Turn now is asking the appellate court to reconsider its ruling. Turn argues that appellate courts can only issue writs of mandamus when a trial judge's decision is "clearly erroneous" -- which, according to Turn, is an "exceedingly high bar" that is only available in “exceptional circumstances."

"If allowed to stand, this decision would open the floodgates to ... petitions challenging orders compelling arbitration of class claims," Turn writes in papers filed last week. "It would allow panels to reconsider those decisions based on mere disagreement with the district court."

Last year, the Turn agreed to resolve a privacy complaint by the Federal Trade Commission over the supercookies. That settlement bars Turn from misrepresenting its online data collection practices.