Afriyie v. NBCUniversal Media, LLC
1:23-cv-09433
| S.D.N.Y. | Mar 31, 2025Background
- Plaintiffs Amma Afriyie and Roy Campbell filed a putative class action against NBCUniversal Media, LLC and Peacock TV, LLC, alleging violations of the federal Video Privacy Protection Act (VPPA), New York Video Consumer Protection Act (VCPA), New York's General Business Law (GBL) § 349, and unjust enrichment.
- The case arises from the alleged transmission of user and video viewing data from NBC-owned mobile apps (Peacock, CNBC News, NBC News, NBC Sports) to third parties (Adobe and mParticle) via embedded SDKs.
- Plaintiffs bought and used only the Peacock and CNBC News apps (the "Purchased Apps"), not the NBC News or NBC Sports apps (“Unpurchased Apps”).
- Plaintiffs argued these apps disclosed personally identifiable information (PII) to third parties without consent.
- Defendants moved to dismiss under Rule 12(b)(6), arguing lack of standing related to Unpurchased Apps and that shared data are not PII under the VPPA/VCPA.
- The court dismissed the complaint in full but allowed leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to Assert Claims on Unpurchased Apps | May represent the whole class, including users of all NBC apps, even those not personally used | Plaintiffs lack standing for apps not personally used; data practices differ | No class standing for Unpurchased Apps—claims dismissed as to those apps |
| VPPA/VCPA – Disclosure of PII | Device and profile identifiers, when aggregated, amount to PII under the statutes | Disclosed data only identify devices/users, not specific individuals; do not meet PII definitions | Alleged disclosures do not constitute PII under VPPA/VCPA—claims dismissed |
| GBL § 349 (Deceptive Practices) | Failure to disclose data-sharing practices and statutory violations is deceptive | No actionable deception if no underlying statutory violation or misleading conduct | GBL claim is duplicative of VPPA/VCPA and fails if those claims fail—dismissed |
| Unjust Enrichment | NBC benefited unfairly by disclosing user info | No inequity if no VPPA/VCPA violation; claim is duplicative | Derivative and fails for same reasons as statutory claims—dismissed |
Key Cases Cited
- NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir. 2012) (class standing requires same set of concerns between named plaintiff’s and absent class members’ claims)
- In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3d Cir. 2016) (narrower definition of PII under VPPA; device identifiers not PII)
- Eichenberger v. ESPN, Inc., 876 F.3d 979 (9th Cir. 2017) (adopts "ordinary person" test for PII under VPPA)
- Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (PII under VPPA can be recipient-dependent if linkage of ID reasonably reveals identity)
- Retirement Board v. Bank of New York Mellon, 775 F.3d 154 (2d Cir. 2014) (class standing lacks where class claims require different proof than named plaintiff’s claims)
- DiMuro v. Clinique Lab’ys, LLC, 572 F. App’x 27 (2d Cir. 2014) (no class standing for unpurchased products with differing material facts)