As a follow up to yesterday’s blog post, today we will complete our overview of the contents of the complaint against LinkedIn as well as provide some summary information that will attempt to decide what will happen next in this complaint.
The fourth count relies on the Wiretapping Act, which deals with the unauthorized “intercepting” of electronic information, and, while there may be some dispute over the meaning of “intercepting” in this context, it will likely have the same resolution as the other federal count.
Finally, the fifth and sixth counts allege violations of various state privacy laws that will once again hinge on the terms of service the users agreed to when signing up for LinkedIn.
Besides the interpretation of the terms of service, which stands a good chance of knocking out some, if not all, of these counts at the motion to dismiss stage, the other two important issues here are whether or not the agreement made when users signed up to LinkedIn was procedurally deficient, and whether or not a class can be certified.
Whether or not the users were given adequate notice of the terms of service when they signed up to LinkedIn is probably the most pressing question at this stage of the lawsuit. In its complaint, the plaintiffs allege that LinkedIn’s practice of displaying its terms of service on a separate page that could only be accessed by clicking on a small link at the bottom of the sign-up page did not adequately give notice to the users of the site. In general, these so-called “clickwrap agreements” have been found to be binding in most cases, even where the user may not have, in reality, read the actual terms before agreeing to them. In this case, the distinction the plaintiffs are trying to make is that because the users did not have to scroll through, or even look at the terms of service before agreeing to join, and because the full terms of service were not even listed on the same web page, users are not in fact made aware of the company’s terms of service before signing up as members. If the plaintiffs are going to get around the terms of services, which, in all likelihood, contain provisions that authorized LinkedIn to harvest those email addresses and send invitations under the name of the user, arguing that there was not proper notice is likely their best hope of making that happen.
The other main issue, common to all class action cases, is whether or not a class can be certified. From the complaint, it appears that the plaintiffs stand a reasonable chance of class certification if they can survive the dismissal stage, as, on the face of their complaint at least, it appears as if LinkedIn’s practices extend to all of their users without distinction. If the plaintiffs are able to avoid a dismissal, however, LinkedIn can be expected to make their last stand on this issue.