Ballard v. Insomniac Holdings, LLC
3:25-cv-00811
| N.D. Cal. | Jun 17, 2025Background
- Plaintiff Austin Ballard brought a class action against Insomniac Holdings LLC under the Video Privacy Protection Act (VPPA), alleging unauthorized disclosure of personal video viewing information to Facebook and TikTok.
- Plaintiff subscribed to Insomniac’s newsletter (requiring his email) and regularly watched prerecorded video content on Insomniac’s website while logged into Facebook.
- Insomniac allegedly installed Facebook and TikTok tracking pixels on its site/app, transmitting video titles and unique identifiers to those platforms without user consent.
- Plaintiff claimed Insomniac’s video content and related data tracking were integral to its business and that this activity financially benefited Insomniac via marketing/advertising.
- Insomniac moved to dismiss, arguing Ballard failed to state a claim as Insomniac is not a VPPA “video tape service provider,” Ballard is not a qualifying “consumer,” and there is no “knowing” disclosure of PII.
- The court considered the motion to dismiss under the standard that all well-pleaded factual allegations are assumed true at this early stage.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Is Insomniac a VTSP under VPPA? | Prerecorded video content is central to Insomniac’s business model. | Video content is only peripheral to its business (live festivals). | Enough facts alleged re: video’s role; not dismissed. |
| Is Ballard a VPPA “consumer”? | Newsletter is a service; subscription suffices under plain language. | Must subscribe directly to video service to qualify as “consumer.” | Newsletter subscription suffices; broad definition adopted. |
| Was disclosure of PII “knowing”? | Insomniac controlled & knowingly transmitted PII to third parties. | No plausible claim Insomniac had knowledge; no actual knowledge. | Sufficient facts pled to infer knowing disclosure. |
| Must there be direct subscription to video content? | No, any service from a VTSP qualifies as "goods or services." | Yes, must be direct subscription to video/audiovisual content. | No direct tie to video required under adopted interpretation. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for motions to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (facial plausibility required for surviving dismissal)
- Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) (subscription can be established without payment)
- Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (app installation/relationship may suffice as a subscription)
- Eichenberger v. ESPN, Inc., 876 F.3d 979 (9th Cir. 2017) (knowledge element under VPPA; must possess/disclose PII)