670 F.Supp.3d 90
S.D.N.Y.2023Background
- HGTV operates hgtv.com, which hosts videos and offers optional email newsletters; plaintiffs (Carter, Cifelli, Taylor) each subscribed to at least one newsletter and viewed site videos.
- Plaintiffs allege HGTV embedded Facebook’s Pixel and used the c_user cookie and Automatic Advanced Matching to transmit users’ Facebook IDs, IPs, browser data, and video-viewing activity to Facebook.
- Plaintiffs brought a putative class action under the Video Privacy Protection Act (VPPA), asserting they are “consumers” because they subscribed to HGTV newsletters and seeking statutory damages and injunctive relief.
- HGTV moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing lack of Article III standing and that plaintiffs are not VPPA “subscribers,” and that the transmitted data is not VPPA-protected PII.
- The Court held plaintiffs alleged a concrete injury (disclosure of private information) sufficient for Article III standing, but concluded the Complaint fails to plausibly allege plaintiffs were “subscribers” of HGTV’s audio-visual services under the VPPA and therefore dismissed the VPPA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Plaintiffs contend disclosure of their video-viewing activity to Facebook is a concrete, traditional privacy harm supporting standing | HGTV argues TransUnion requires a closer showing of concrete harm and that statutory violation alone is insufficient | Court: Standing satisfied — disclosure of private information is a traditionally recognized, redressable harm at pleading stage |
| Whether newsletter subscriptions make plaintiffs "subscribers" under the VPPA | Plaintiffs say subscribing to HGTV newsletters makes them "subscribers" and thus "consumers" protected by the VPPA | HGTV says newsletter signup is distinct from subscribing to audio-visual services; newsletters are promotional and do not grant access or commitment to video content | Court: Dismissed — newsletter subscriptions do not plausibly establish plaintiffs were "subscribers" of HGTV's audio-visual services under the VPPA |
| Whether the data sent to Facebook constitutes VPPA "personally identifiable information" (PII) | Plaintiffs allege Facebook ID, IP, browser data, and viewed videos identify individuals and are actionable PII | HGTV disputes that the transmitted data qualifies as VPPA PII | Court: Did not reach this issue after finding plaintiffs were not VPPA "consumers"; left unresolved |
Key Cases Cited
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (recognition that concrete harm is required for Article III standing even when statute creates a cause of action)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (Article III injury-in-fact requires concrete and particularized harm)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (pleading-stage standards for standing)
- Ashcroft v. Iqbal, 556 U.S. 662 (Rule 12(b)(6) plausibility standard)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must state a claim plausible on its face)
- Austin-Spearman v. AMC Network Ent. LLC, 98 F. Supp. 3d 662 (newsletter/website access alone may be insufficient to allege VPPA "subscriber" status)
- Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (app-download cases: free app download does not necessarily establish "subscriber" status under VPPA)
- Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (contrasting view that app access can support subscriber status)
- Carter v. HealthPort Techs., LLC, 822 F.3d 47 (standard for assessing facial challenges to standing)
- In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (describing VPPA’s purpose and private right of action)