Locklear v. Dow Jones & Co.
101 F. Supp. 3d 1312
N.D. Ga.2015Background
- Plaintiff Terry Locklear downloaded and used the free WSJ Channel on a Roku device and alleges Dow Jones transmitted her Roku device serial number and video viewing history to mDialog, an analytics/ad company.
- Plaintiff claims mDialog could link the Roku serial number to her identity (by obtaining demographic data from Roku or other sources) and thereby obtain her viewing history.
- Plaintiff sues under the Video Privacy Protection Act (VPPA), alleging disclosure of personally identifiable information (PII) and bringing a putative class action seeking statutory damages and injunctive relief.
- Dow Jones moved to dismiss the amended complaint for failure to state a VPPA claim and lack of Article III standing; earlier motions to dismiss the original complaint were denied as moot after amendment.
- The court accepted well-pleaded facts as true for Rule 12(b)(6) analysis and treated the dispute chiefly as whether (1) Locklear has standing and (2) the disclosed Roku serial number (and viewing history) qualifies as "personally identifiable information" under the VPPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | VPPA creates a statutory privacy right; violation alone is a concrete injury | No independent injury-in-fact absent additional harm | Plaintiff has Article III standing based on statutory "aggrieved" language |
| Consumer status under VPPA | Locklear downloaded/used WSJ Channel to watch videos; no payment required to be a "subscriber" | Because she paid nothing, she is not a "consumer" (renter/purchaser/subscriber) | Plaintiff plausibly pleaded she is a "subscriber" and thus a "consumer" under the VPPA |
| Whether disclosed Roku serial number + viewing history is PII | A persistent unique device identifier can be PII because it can be linked to a person | Anonymous device ID alone is not PII; identification required additional steps by third parties | Roku serial number "without more" is not PII; disclosure is not actionable under the VPPA |
| Amendment futility / dismissal with prejudice | (Implicit) further amendment could cure defects | Disclosure of only the Roku serial number cannot meet VPPA PII requirement; further amendment would be futile | Amended complaint dismissed with prejudice; no further amendment permitted |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard requires factual plausibility)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Warth v. Seldin, 422 U.S. 490 (1975) (Congress may create statutory rights that confer standing)
- Federal Election Comm’n v. Akins, 524 U.S. 11 (1998) ("aggrieved" statutory language casts standing net broadly)
- Palm Beach Golf Center–Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (Article III limits on federal jurisdiction)