695 F. App'x 117
6th Cir.2017Background
- Time, Inc. sells magazines and fulfills subscriptions directly but uses third-party online subscription agents (agents take orders, collect payment, transmit order info to Time, and do not take physical possession of magazines).
- Time shared subscribers’ order information (name, address, magazine choice) with Acxiom and Wiland to enhance its list-rental business; subscribers could opt out but were not asked for prior consent.
- Plaintiff Rose Coulter-Owens sued under Michigan’s Preservation of Personal Privacy Act (PPPA), alleging Time violated Section 2 by disclosing purchase records; the class sought statutory damages of $5,000 per incident (no actual damages claimed).
- District court granted summary judgment for Time, holding sales through subscription agents were not sales “at retail” under the PPPA because agents were resellers, so no retailer-customer relationship between Time and class members.
- On appeal, Time raised for the first time that plaintiffs lack Article III standing (invoking Spokeo and a 2016 amendment to PPPA eliminating the $5,000 statutory damages); the Sixth Circuit addressed standing first and affirmed the district court on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | PPPA protects privacy of reading choices; statutory violation is a concrete injury | Spokeo requires concrete harm; amended PPPA (requiring actual damages) is retroactive so no recoverable injury | Plaintiff has standing: PPPA creates a statutory interest in privacy and the disclosure alleged is a concrete injury; the 2016 amendment is not retroactive |
| Retroactivity of 2016 PPPA amendment | Amendment is not retroactive; plaintiffs rely on statute as it existed when disclosure occurred | Amendment repealed statutory damages and applies retroactively, eliminating plaintiffs’ remedy | Amendment is not retroactive under Michigan law because it lacks express retroactivity and would impair vested rights |
| Whether PPPA injury is sufficient post-Spokeo | Spokeo does not undermine PPPA injuries because this is a substantive privacy harm, not a bare procedural violation | Spokeo requires concrete, real-world harm beyond statutory violation | Spokeo does not defeat standing here; disclosure of reading choices is a concrete privacy injury |
| Whether sale was “at retail” under PPPA (eligibility for protection) | Subscription agents acted as middlemen (not resellers); Time sold at retail to subscribers | Agents were resellers; sale to agents means Time did not sell "at retail" to consumers | Sale to class members was via reseller chain; Time’s sale to subscription agents was not "at retail" under the statute, so PPPA did not apply; summary judgment for Time affirmed |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III injury-in-fact requires concrete harm; bare procedural violations insufficient)
- Louisville/Jefferson Cty. Metro Gov’t v. Hotels.com, 590 F.3d 381 (6th Cir. 2009) (third-party intermediary can be characterized as a reseller for certain legal purposes)
- World Book, Inc. v. Dep’t of Treasury, 590 N.W.2d 293 (Mich. 1999) (door-to-door order-takers characterized as middlemen rather than resellers)
- Mich. Nat’l Bank v. Dep’t of Treasury, 339 N.W.2d 515 (Mich. Ct. App. 1983) (intermediary that takes possession or effectively resells treated as reseller)
- Boelter v. Hearst Commc’ns, Inc., 192 F. Supp. 3d 427 (S.D.N.Y. 2016) (holding PPPA plaintiffs had Article III standing and rejecting Spokeo as dispositive in this context)