Duane Morris Privacy Class Action Review – 2024

commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. § 2710(a)(4). Importantly, the court noted that the statute does not apply to every company that “delivers audio visual materials ancillary to its business” but only to companies “ specifically in the business of providing audio visual materials.” Id. Based on the allegations, the court held that the plaintiffs failed to allege that General Mills – who manufactures and sells cereals, yogurts, dog food, and other products – was “engaged in the business of delivering, selling, or renting audiovisual material.” Id. The court rejected the plaintiffs’ attempt to satisfy step (1) by adding allegations in their amended complaint regarding General Mills posting on its website links to professionally made videos. The court stated that the “allegations do no more than show that videos are part of General Mills’ marketing and brand awareness,” which does not suggest “that the videos are profitable in and of themselves” or that the videos “are the business that General Mills is engaged in.” Id. at *9. The court further held that even if the plaintiffs had satisfied the first step, they nonetheless would have failed at step (2) based on their failure to allege facts establishing that they were “consumers” under the VPPA. The VPPA defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). Read in the statute ’ s full context, courts have held that “a reasonable reader would understand the definition of ‘ consumer’ to apply to a renter, purchaser or subscriber of audio-visual goods or services, and not goods or services writ large.” Id. at *11. That is, the definition of “consumer” “mirrors the language used to define a ‘ video tape service provider’ as one who is in the business of ‘ rental, sale, or delivery’ of audiovisual material.” Id. The court determined that the plaintiffs’ prior purchase of General Mills’ food – an “unrelated product” – does not make them “consumers of audiovisual material.” Id. Accordingly, the court granted the motion to dismiss. In Alex, et al. v. NFL Enterprises LLC , 2023 U.S. Dist. LEXIS 172991 (S.D.N.Y. Sept. 27, 2023), the plaintiffs who subscribed to free e-newsletters of NFL teams, filed a class action against the NFL and NFL Enterprises, alleging that their private information was shared with Facebook without their consent, in violation of the VPPA. The court denied the defendants’ motion to dismiss based on lack of subject-matter jurisdiction but granted their motion to dismiss under Rule 12(b)(6) for failure to state a claim. The court initially addressed the issue of standing, which is a fundamental requirement for a lawsuit to proceed. To establish standing, a plaintiff must show that they suffered a concrete, particularized, and actual or imminent injury due to the defendant ’ s actions. The court determined that the plaintiffs had standing because they alleged that the defendants shared their private information and video-watching data with Facebook without their consent. To bring a claim under the VPPA, the court noted that the plaintiffs must qualify as consumers. The court ruled that the plaintiffs did not meet the definition of consumers under the VPPA because their subscription to the NFL ’ s free e-newsletters did not create a consumer-provider relationship, as they did not establish an account, make payments, or show a desire to forge ties with the NFL by merely accessing publicly available content on the team websites. The court opined that the plaintiffs were no different from other website visitors who accessed free content, and their subscription did not provide them with exclusive content or enhanced access. Therefore, the court concluded that the plaintiffs were not consumers under the VPPA. Accordingly, the court granted the defendants’ motion to dismiss. Finally, in Lamb, et al. v. Forbes Media LLC , 2023 U.S. Dist. LEXIS 175909 (S.D.N.Y. Sept. 28, 2023), the plaintiffs filed a class action alleging that the defendant unlawfully disclosed their personally identifiable information (PII) to Facebook without their consent in violation of the VPPA. The defendant filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), which the court granted. The plaintiffs specifically alleged that the defendant shared information with Facebook using the Facebook Tracking Pixel, thereby allowing Facebook to collect data about users’ actions on the defendant ’ s website. The plaintiffs asserted that the defendant transmitted specific events, such as “PageView” and “ViewContent,” to Facebook, revealing which pages users viewed and whether they watched videos, which allowed Facebook to track users’ video viewing behavior. Id. at *5. The lead plaintiff subscribed to Forbes by creating an account through Facebook, while another named plaintiff signed up for a Forbes newsletter, both of which resulted in the alleged disclosure of their information to Facebook. The court found that the plaintiffs lacked subject- matter jurisdiction because they were not considered “consumers” under the VPPA. The court explained

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