Duane Morris Privacy Class Action Review – 2024

constitute a concrete injury). Rejecting the defendant ’ s standing argument, the court noted that the VPPA created a “right to privacy of one ’ s video-watching history, the deprivation of which – through wrongful disclosure, or statutory violation alone - constitutes an injury sufficient to confer Article III standing.” Id. at *14. Thus, the court ruled that the plaintiff ’ s allegation that his personally identifiable information was transmitted to Facebook in violation of the VPPA identified a concrete harm for standing purposes. Id. at *16-17. The defendant also asserted that the plaintiff had no viable claim under the VPPA because he was not a “consumer,” meaning “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Id. at 17. Because the plaintiff was not a “consumer” within the meaning of the VPPA, Paramount argued he was not a “subscriber of goods or services from a video tape service provider,” and the plaintiff did not state a claim under the VPPA because the statute only protects individuals who are “consumers” under the statute. Id. at *21. The court noted that although the VPPA does not define “subscriber,” the dictionary definition indicates that “subscriber” is a person who “imparts money and/or personal information in order to receive a future and recurrent benefit.” Id. Further interpreting the statute, the court reasoned that a consumer is only a “subscriber” under the statute when he or she subscribes to audio visual materials. Id. at *26. Completing the analysis, the court reasoned that under the VPPA, because the plaintiff ’ s subscription to the newsletter was not sufficient to establish that the he had subscribed to audio visual materials, the plaintiff ’ s position was unavailing in claiming that his subscription to the newsletter rendered him a “subscriber.” Id. The court, therefore, dismissed the plaintiff ’ s VPPA class action lawsuit because the plaintiff failed to allege that he actually accessed audio visual content, which necessarily meant that the plaintiff was not a subscriber under the VPPA. In Salazar, et al. v. National Basketball Association, 2023 U.S. Dist. LEXIS 137982 (S.D.N.Y. Aug. 7, 2023), the plaintiff filed a class action alleging that the defendant violated the VPPA by sharing his personal viewing information on the defendant ’ s website with Facebook without his consent. The defendant filed a motion to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6). The court granted the motion. Regarding standing, the court found that the plaintiff adequately pleaded an injury, as his privacy rights were allegedly violated when his personal information was shared without his consent. The court ruled that “intrusion upon seclusion” was an injury sufficient to confer standing. The court explained that a consumer under the VPPA – and necessarily, a “renter, purchaser, or subscriber ” under the VPPA – consumes (or rents, purchases, or subscribes to) audio visual materials, not just any products or services from a video tape services provider. Id. at *23. The court found that the plaintiff failed to allege a plausible claim under the VPPA, because he did not qualify as a subscriber of audiovisual services from the defendant, as he had only subscribed to the defendant ’ s newsletters, and there was no evidence that these newsletters were tied to exclusive video content or enhanced access. For these reasons, the court granted the defendant ’ s motion to dismiss. In Carroll, et al. v. General Mills, Inc., 2023 U.S. Dist. LEXIS 155621 (C.D. Cal. Sept. 1, 2023), the plaintiffs alleged that they watched videos on General Mills’ website and that General Mills subsequently disclosed their “video viewing behavior” to Facebook and Google. Based on these allegations, the plaintiffs filed a class action that alleged General Mills violated the VPPA by knowingly disclosing their personally identifiable information (PII) to Facebook and Google. The court granted General Mills’ motion to dismiss the plaintiffs’ VPPA claim. The court held that the plaintiffs failed to satisfy the first two prongs of the four- step pleading test applicable to VPPA claims. In analyzing the allegations, the court explained that to state a viable VPPA claim, a plaintiff must allege that: (i) a defendant is a “video tape service provider;” ii) the defendant disclosed PII concerning a consumer to another person; (iii) the disclosure was made knowingly; and (iv) the disclosure was not authorized by the “safe harbor” provision set forth in 18 U.S.C. § 2710(b)(2). Id. at *7. The court determined that the plaintiffs’ VPPA claim failed at step (1) because the plaintiffs did not adequately allege that General Mills is a “video tape service provider,” and that even if the court were to proceed to step (2), the plaintiffs would also fail at that step based on their inability to show that they qualify as “consumers” under the statute. Id. at *8. Regarding step (1), the VPPA defines a “video tape service provider” as “any person, engaged in the business, in or affecting interstate or foreign

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