that function the ordinary function of a tracking cookie. As
stated above, in discussing the function of the defendants’
cookies, the complaint describes them as having an
associative function only.65
In view of our common sense reading of the operative
allegations of the complaint, we note the factual position that
the defendants advanced at argument: “The cookie doesn’t
acquire anything . . . The cookie doesn’t look for anything. It
just sits on the browser and gets sent along with information
that would otherwise be sent.”66 The information at issue
would be sent anyway because “the user’s web browser
send[s] a GET request to Google to display the relevant
advertising information for the space on the page for which
Google has agreed to sell display advertisements.”67 We note
also that, at argument, the plaintiffs’ counsel was directly
asked on six separate occasions to clarify what transmissions
they believed were improperly acquired and/or how the
defendants’ cookies functioned.68 The plaintiffs’ counsel did
not provide a direct response on any of these occasions.
At the Rule 12(b)(6) stage “we accept the pleader’s
description of what happened to him or her along with any
65
Compl. ¶¶ 46, 95, 96, 151, 156.
66
Oral Arg. Tr. at 25.
67
Compl. ¶ 86.
68
Oral Arg. Tr. at 9-10, 11, 12, 13, 14, 15.
33