The United States Northern District Court of California dismissed a case earlier this week brought by Hugo Elliott, a citizen of the UK who lives in England, against the American ad tech company PubMatic.
The case was dismissed out of hand, so it hardly seems a notable decision. Except that it would have been the first time that a British or EU citizen brought a suit against an American company in a US court based on the GDPR.
“The plaintiff was seeking a way to weld UK substantive law on to US procedural law for litigation purposes, and essentially import UK GDPR litigation into the United States, just on the grounds that PubMatic is based here,” said Edward Takashima, one of PubMatic’s attorneys at the law firm Boies Schiller Flexner.
Elliott, the plaintiff, submitted that PubMatic tracked him across the web, along with other residents of England and Wales represented in the class-action suit, in violation of the GDPR.
An interesting wrinkle: The EU GDPR requires that suits be brought in European courts. But the UK has its own version of the law, which is materially identical in terms of privacy standards, except it does not explicitly state that suits go to domestic courts.
There has been a growing chorus of plaintiff attorneys eager to try a GDPR suit in the US, according to Mark Mao, a partner at BSF who leads the data privacy practice. Class-action suits are not as common or developed in Europe, so lawyers accustomed to the US system have wanted to test the class-action system here.
Foreign suits have been brought against US companies in American courts. But it’s rare, and is typically confined to cases that don’t have alternative legal forums – one example cited by District Judge Phyllis Hamilton was Carijano v. Occidental Petroleum Corp, a case where Peruvian indigenous groups sued the US petroleum manufacturer for environmental contamination.
“The plaintiff was hoping for a decision that would have opened the door to a slew of similar cases against US-based tech companies, sued in the US under UK law,” said Takashima. “The court firmly closed the door on that.”
PubMatic testified that it would be willing to contest the suit in the UK, which Judge Hamilton noted in her decision. She also said the UK’s GDPR law is still being developed in the country, and that it would be burdensome for the district court to familiarize itself with the law, let alone set precedent.
“California has little interest in hosting this dispute, and PubMatic’s willingness to submit to UK jurisdiction mitigates against this foreign plaintiff’s choice of forum,” she wrote in her dismissal.