The Arkansas Supreme Court Thursday overturned a Washington County circuit judge’s dismissal of a lawsuit filed against TV Guide alleging that the company downloaded a “Flash cookie” onto the plaintiffs’ computers without their knowledge, permission or consent when they accessed its website.
The state’s high court sent the case back to Washington County Circuit Judge Mark Lindsay for a trial.
Sharon Roller, Valerie Murphy and Emily Smith filed a class-action complaint against TV Guide Online Holding, claiming that they represented a class of people who had accessed TV Guide’s website.
The “Flash cookie” had the capacity to monitor, capture and report information concerning their activity on the Internet, they maintained. The complaint said that they were each citizens and residents of Washington County and that a substantial part of the events and omissions giving rise to their claims occurred in Washington County.
TV Guide filed a motion to dismiss, contending that Roller, Murphy and Smith had not pleaded facts sufficient to show that Washington County was the proper venue for their claims. The firm contended that by use of TV Guide’s website, the three women had consented to the venue being Los Angeles County, Calif., and thus Washington County in Northwest Arkansas was not the proper venue.
On December of 2011, the circuit court found that Roller, Murphy and Smith had not pleaded sufficient facts to avoid jurisdiction and venue in Los Angeles. The lower court later entered an order to dismiss the lawsuit and then denied a motion to reconsider its ruling.
In a 7-0 ruling signed by Justice Karen Baker, the state Supreme Court said Roller, Murphy and Smith asserted that each was a citizen and resident of Washington County and that TV Guide has more than minimum contact with the state of Arkansas and has availed itself of the privilege of conducting business in this state.
“Treating these facts as true and viewing them in the light most favorable to the plaintiff, appellants have pleaded sufficient facts to show that venue is properin Washington County,” the court said.
TV Guide also didn’t meet its burden of demonstrating that venue was improper in Washington County, the court said.
The firm contests venue in Washington County on the basis of an agreement on its website, but it hasn’t demonstrated that the terms of the agreement were communicated to Roller, Murphy and Smith, according to the state Supreme Court.
TV Guide’s assertions that Roller, Murphy and Smith had notice of the agreement stem from their mention ofthe agreement in their lawsuit, but “this is insufficient as the dispositive issue in determining if an enforceable agreement existed is whether appellants had constructive or actual knowledge of the terms of the agreement and therefore agreed by their use of TV Guide’s website to be bound by those terms,” the court said.
The Supreme Court ruled that the circuit court erred in granting TV Guide’s motion to dismiss because subject-matter jurisdiction cannot be created or waived by agreement between the parties and TV Guide has not met its burden to show that an enforceable agreement existed between it and Roller, Murphy and Smith regarding the proper venue in which to bring the claims.
Northwest Arkansas, Pages 9 on 06/28/2013