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Austin-Spearman v. AARP

United States District Court, D. Columbia.

July 28, 2015

Ethel Austin-Spearman, Plaintiff,
AARP and AARP Services Inc., Defendants

For ETHEL AUSTIN-SPEARMAN, Plaintiff: Alicia E. Hwang, Benjamin S. Thomassen, Jay Edelson, Rafey S. Balabanian, LEAD ATTORNEYS, PRO HAC VICE, EDELSON PC, Chicago, IL; Maria Christina Simon, THE GELLER LAW GROUP, PLLC, Fairfax, VA.

For AARP, AARP SERVICES INC., Defendants: Thomas E. Gilbertsen, LEAD ATTORNEY, Michael P. Bracken, VENABLE LLP, Washington, DC.

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KETANJI BROWN JACKSON, United States District Judge.

Plaintiff Ethel Austin-Spearman is an internet savvy woman. According to her complaint, she became a member of Facebook's social network in 2007, and she frequently accesses that website and others through the web browser on her computer. ( See Am. Compl., ECF No. 23, ¶ ¶ 71-72.) Moreover, whenever Austin-Spearman registers for a new online service, she diligently reads the website's

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Terms of Service and the Privacy Policy. ( See id. ¶ 77.)[1] It is the terms of the Privacy Policy on the AARP's internet website that have given rise to the instant action--Austin-Spearman alleges that Defendants AARP and AARP Services Inc. (collectively, " Defendants" ) have violated the Privacy Policy because the AARP's website is configured to permit companies like Facebook and Adobe to collect personally identifiable information(" PII" ) about the user.[2] Austin-Spearman's class action complaint contains five counts--breach of contract, unjust enrichment, intentional misrepresentation, fraud by omission, and violation of the D.C. Consumer Protection Procedures Act (" DCCPPA" ), D.C. Code § § 28-3901 to 28-3913 (2012)--and Austin-Spearman maintains that Defendants' breach of the AARP's own privacy promises has injured her economically because she would not have tendered the fee to purchase an AARP membership had she known that the organization would permit the collection of her PII by Facebook and other third parties.

Before this Court at present is Defendants' motion to dismiss the complaint for lack of Article III standing and for failure to state a claim upon which relief can be granted. For the reasons explained below, this Court finds that the complaint's allegations are insufficient to establish that Defendants' practices regarding user data violate the AARP's internet Privacy Policy, and in any event, it is entirely implausible that Austin-Spearman has suffered the injury she relies upon for standing (an economic injury) as a result of the AARP's purported violation of its internet-usage Privacy Policy. Therefore, the Court concludes that Austin-Spearman does not have Article III standing to sue, and as a result, Defendants' motion to dismiss the complaint will be GRANTED. A separate order consistent with this opinion will issue.


A. Plaintiff's Allegations

In late 2010, longtime Facebook member and an experienced internet user Austin-Spearman navigated to to learn about AARP membership. ( See Am. Compl. ¶ ¶ 72-73.)[3] The AARP is an organization that advocates for people over the age of 50; the fee that one pays to become an AARP member supports the organization's lobbying and litigation efforts, and AARP members also have access to " discounts on shopping, dining, and travel as well as financial and insurance-related products and services." ( Id. ¶ 1.) A person who is 50 years of age or older can become a member of the AARP by mailing in a paper form along with the

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requisite membership fee, or by purchasing a membership online, through the AARP's website. ( See id. ¶ ¶ 19, 23.) Paid AARP members may then opt to establish an online account with the organization, which is accomplished by creating login credentials--a user name and password--and also by " enter[ing] their demographic information (first name, last name, country, zip code, and birthday) on AARP's website." ( Id. ¶ 23.) Notably, the AARP's website is set up such that any person can create an online AARP account without first becoming an AARP member; however, AARP members must register online if they wish to access certain discounts and special offers that are available to AARP members only through the member's AARP online account. ( See id. ¶ ¶ 2, 20.)

Austin-Spearman purchased a three-year AARP membership for $43 through AARP's website ( see id. ¶ 74); then, she proceeded to create an online AARP account ( see id. ¶ 77). To establish her account, Austin-Spearman entered the requisite registration information, and she also viewed, and agreed to, AARP's Privacy Policy. ( See id. ¶ 77)

The terms of AARP's online Privacy Policy are central to the parties' dispute, and they are recited in detail in Plaintiffs' complaint.[4] The Privacy Policy is seven-pages long and is divided by subject-matter into twelve sections; as a general matter, the policy explains the types of information that are captured when people visit the AARP website. Section 3--which is entitled " Information We Collect From You" --states, in relevant part, that

[w]hen you join AARP, we collect basic information such as your name, contact information, preferences and date of birth. We collect information about your participation in AARP activities, including member services and discounts obtained by using your membership card.
AARP also collects information on our website. We collect both information that identifies you as a particular individual (" personally identifiable information" ) and anonymous information that is not associated with a specific individual (" nonpersonally identifiable information" ). When you visit our website, some information may be collected automatically as part of the site's operation. We also collect information we receive from you during online registration and when you complete other forms.

AARP, Your Privacy Rights -- Privacy Policy (" AARP Privacy Policy" ) at Sec. 3, Information We Collect From You, ¶ 2.[5]

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( See also Am. Compl. ¶ 27.) The next section of the policy (Section 4) addresses " Information Collected By Third Parties" --it is the first paragraph of Section 4 that is the basis for the allegations made in Austin-Spearman's complaint:

We may allow third-party analytics companies, research companies or ad networks to collect nonpersonally identifiable information on our website. These companies may use tracking technologies, including cookies and Web beacons, to collect information about users of our site in order to analyze, report on or customize advertising on our site or on other sites. For information about how to opt-out of the customization of advertising from many ad networks, you can visit here.

AARP Privacy Policy at Sec. 4, Information Collected by Third Parties, ¶ 1. Notably, the third paragraph of Section 4 also specifically cautions that " [i]f you stay logged into your social media accounts . . . while visiting our website[,] those social media companies may collect information about you." Id. ΒΆ 3. Furthermore, in Section 5, the Privacy Policy states that AARP itself " may share your information[,] including your personally identifiable information[,] with companies we hire to provide certain [] services such as . . . improving advertising services . . . ...

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