Eighth Circuit Privacy Class Action Fails To Clear Second Hurdle

In Carlsen v. GameStop Inc., plaintiff ­– a paid subscriber to defendant's online gaming magazine – brought a putative class action lawsuit against defendant for alleged breach of its privacy policy by disclosing plaintiff's Facebook ID and his browsing information for the defendant's online content to Facebook. Plaintiff asserted claims for breach of contract, unjust enrichment, money had and received, and violation of Minnesota's Consumer Fraud Act. Defendant moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(6)(6). The Minnesota federal district court granted the motion to dismiss for lack of subject matter jurisdiction, finding that the case was analogous to identity theft and data breach class actions and hence failed for lack of standing. The court reasoned that that plaintiff's theory of damages – that he would not have paid as much for or would not have bought the subscription had he known