Golden v. NBCUniversal Media, LLC
1:22-cv-09858
S.D.N.Y.Sep 3, 2025Background:
- Plaintiff Sherhonda Golden subscribed to Today.com daily newsletters and viewed Today.com video content while logged into Facebook.
- Today.com had Facebook's tracking Pixel installed; the FAC alleges Pixel transmissions included video URLs/titles and a Facebook ID (FID) cookie value tied to individual Facebook profiles.
- Golden alleges those transmissions disclosed personally identifiable information (PII) — the video identity, the consumer identity (via FID), and the link between them — in violation of the Video Privacy Protection Act (VPPA), and asserts an unjust enrichment claim based on the same facts.
- The FAC reproduces screenshots of Pixel-related HTTP/cookie code showing URL paths and cookie strings that purportedly contain video identifiers and FIDs.
- Procedural posture: this is Golden’s Fourth Amended Complaint after prior dismissals; the case was remanded following Salazar v. NBA (Second Circuit) holding that newsletter subscribers can be VPPA "consumers." NBCUniversal moved to dismiss the FAC on the ground that the FAC fails to allege a VPPA disclosure of PII.
- The court relied on recent Second Circuit precedent (Solomon and Hughes) holding Pixel-based code disclosures intelligible only to sophisticated actors are not PII to an "ordinary person," and dismissed Golden’s VPPA and unjust enrichment claims with prejudice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pixel transmissions alleged in FAC constitute "personally identifiable information" under the VPPA | Golden: Pixel sent video URLs/titles plus FID cookie; an FID uniquely identifies a Facebook user, so the transmissions disclosed a consumer's identity, the video identity, and the connection | NBCU: Alleged transmissions are technical code/cookie strings intelligible only to Facebook or technologists and therefore do not disclose PII to an ordinary person | Court: Dismissed VPPA claim — strings are technical and not intelligible to an ordinary person; under Solomon/Hughes, Pixel-based transmissions do not allege actionable PII |
| Viability of unjust enrichment claim based on same allegations | Golden: NBCU benefited by sharing user data with Facebook | NBCU: Unjust enrichment duplicates statutory VPPA claim and should be dismissed | Court: Dismissed unjust enrichment as duplicative of VPPA claim and plaintiff did not oppose; claim dismissed |
Key Cases Cited
- Solomon v. Flipps Media, Inc., 136 F.4th 41 (2d Cir. 2025) (adopts "ordinary person" standard and holds Pixel-transmitted code/cookie strings that only sophisticated actors can decode are not VPPA PII)
- Salazar v. National Basketball Ass'n, 118 F.4th 533 (2d Cir. 2024) (digital newsletter subscription can make a recipient a VPPA "consumer")
- In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) (applies ordinary-person standard; technical identifiers like IP addresses or cookie codes are unlikely to be PII to an ordinary person)
- Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (adopts a reasonable-foreseeability test for VPPA PII, contrasting with the ordinary-person approach)
- Eichenberger v. ESPN, Inc., 876 F.3d 979 (9th Cir. 2017) (adopts ordinary-person standard for VPPA PII)
- Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777 (N.Y. 2012) (unjust enrichment is unavailable where it merely duplicates a statutory or tort claim)