It’s Still About The Damages

In a mixed decision, a federal court judge in New York dismissed federal statutory claims arising from Web-based advertisers' use of cookies that tracked users' Web browsing activities, but denied a motion to dismiss claims under state law. The plaintiff in Bose v. Interclick alleged that Interclick and clients McDonalds, CBS, Mazda and Microsoft violated the federal Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, and the New York deceptive business practices statute, , N.Y. General Business Law § 349 ("Section 349") through their use of such cookies. The court reached different results based on the respective statutes' damages requirements.

The CFAA claim was dismissed for failure to meet the statute's minimum damages requirement. The CFAA permits civil claims where the defendants' conduct caused "loss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value." Id., § 1030(c)(4)(A)(i)(I). Plaintiff, however, failed to allege