by Wendy Davis @wendyndavis, October 30, 2017

In another blow to Turn, a federal appellate court said Monday it won’t reconsider a recent decision allowing consumers to sue the ad company over its alleged use of “supercookies.”

The 9th Circuit Court of Appeals said Monday that none of its judges requested a vote on Turn’s request for a new hearing. The decision leaves in place a ruling issued in September, when a three-judge panel ruled that Turn, now owned by Amobee, was not entitled to have the consumers’ lawsuit sent to arbitration.

The long-running battle stems 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.

Verizon originally said 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.

A trial judge accepted Turn’s argument, but last month a panel of the 9th Circuit issued a “writ of mandamus” that effectively reversed the trial judge’s decision. Turn subsequently requested a re-hearing in front of at least 11 of the circuit judges. The company argued that appellate judges 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 unsuccessfully argued in papers filed earlier this month.

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

MediaPost.com: Search Marketing Daily

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