681 F.Supp.3d 864
N.D. Ill.2023Background
- Plaintiffs (Facebook users) created MeTV accounts and viewed videos on metv.com while logged into Facebook; they allege MeTV transmitted their Facebook ID (FID), PII, and the full titles of watched videos to Meta via the Meta Pixel without VPPA consent.
- Plaintiffs sued MeTV under the Video Privacy Protection Act (VPPA) for knowing disclosure of personally identifiable information about video viewing (and for unjust enrichment); MeTV moved to dismiss under Rule 12(b)(6).
- MeTV argued plaintiffs are not VPPA "consumers/subscribers," plaintiffs failed to plead knowing disclosure of "specific video materials," and the ordinary-course-of-business exception applies.
- The court interpreted the undefined term "subscriber" by ordinary meaning and prior precedent, concluding that a mere, free website account or newsletter-style registration unconnected to access or special benefits for video content is insufficient to be a VPPA subscriber.
- Because the court found plaintiffs were not "subscribers," it dismissed the VPPA claim and the dependent unjust-enrichment claim without prejudice and granted leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are "subscribers" under the VPPA | Creating a MeTV account reflects an ongoing relationship; subscription need not be paid | Registration optional; videos freely accessible without login; registration alone insufficient | Plaintiffs are not "subscribers"; registration unconnected to video access insufficient — dismissal |
| Whether MeTV "knowingly disclosed" specific video materials and PII to Meta | Meta Pixel transmitted FID, PII and full video titles; observed targeted ads support disclosure allegation | Allegations are insufficient to show knowing disclosure of specific video materials tied to identity | Court did not reach this issue (dispositive subscriber ruling) — not decided |
| Whether MeTV's conduct falls within the VPPA ordinary-course-of-business exception and viability of unjust enrichment claim | Exception inapplicable; unjust enrichment independent remedy | Ordinary-course exception applies; unjust enrichment depends on VPPA claim | Court did not decide exception; unjust enrichment dismissed as dependent on VPPA — dismissal without prejudice |
Key Cases Cited
- Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618 (7th Cir. 2014) (describing VPPA's prohibition on disclosure of video viewing PII)
- Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) (multi-factor approach to whether a user is a VPPA "subscriber")
- Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (subscription can require provision of personal information as consideration)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations are not entitled to the assumption of truth)
- Astellas US Holding, Inc. v. Fed. Ins. Co., 66 F.4th 1055 (7th Cir. 2023) (use ordinary, contemporary meaning in statutory interpretation)
- Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019) (statutory terms are interpreted by ordinary meaning unless defined)
- Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510 (7th Cir. 2015) (leave to amend is ordinarily allowed)
- Vanzant v. Hill's Pet Nutrition, Inc., 934 F.3d 730 (7th Cir. 2019) (under Illinois law, unjust enrichment is not a separate cause of action)