685 F.Supp.3d 232
S.D.N.Y.2023Background
- Plaintiff Michael Salazar (California resident) alleges NBA.com installed Facebook’s tracking pixel and transmitted his "personal viewing information" (video watched + Facebook ID) to Facebook without his knowledge or consent.
- Salazar had a digital subscription (newsletter sign‑up) to NBA.com and used Facebook while watching NBA videos; he alleges no written notice or opt‑out was provided.
- He filed a putative class action under the Video Privacy Protection Act (VPPA) seeking relief for disclosure of personally identifiable video‑viewing information.
- NBA moved to dismiss for lack of Article III standing (Rule 12(b)(1)), for failure to state a VPPA claim (Rule 12(b)(6)), and other defenses; the court considered supplemental authority submitted by the parties.
- The court held Salazar had standing (disclosure of private viewing info is a concrete injury analogous to intrusion upon seclusion) but dismissed the VPPA claim on the merits because Salazar was not a VPPA "consumer"—his newsletter subscription did not make him a subscriber to audio‑visual services.
- The court denied leave to amend as futile and closed the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III injury in fact) | Disclosure of private viewing info to Facebook without consent is a concrete privacy injury (analogous to intrusion upon seclusion). | No concrete harm: at most a statutory violation or Facebook learning truthful information about plaintiff. | Held: Salazar has standing; disclosure of private viewing data is a historically cognizable intangible harm post‑TransUnion. |
| Whether plaintiff is a "consumer/subscriber" under the VPPA | Newsletter sign‑up (digital subscription) and subsequent video viewing make Salazar a "subscriber" and thus a protected consumer. | Newsletter subscription is not a subscribership to audio‑visual services; videos were publicly accessible and newsletter did not grant exclusive or enhanced access. | Held: Dismissed for failure to state a VPPA claim—newsletter subscription did not plausibly make Salazar a VPPA "subscriber." |
| Knowledge, PII, and consent defenses under VPPA | (Plaintiff alleged NBA knowingly transmitted PVI and did not obtain consent or provide notice.) | NBA argued no knowing disclosure, and consent/other statutory exceptions apply. | Court did not reach these arguments because it dismissed for lack of consumer status. |
| Leave to Amend | Plaintiff requested leave generally to cure pleading defects. | NBA opposed; court noted no proposed amended facts were specified. | Denied as futile—no specific amendment proffered that would cure the subscriber deficiency. |
Key Cases Cited
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (U.S. 2021) (Article III requires a concrete injury; disclosure of private information can be a traditionally recognized harm)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (U.S. 2016) (statutory violations alone do not automatically confer Article III standing absent concrete injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires injury in fact, causation, redressability)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard requires plausible factual allegations)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Mollett v. Netflix, Inc., 795 F.3d 1062 (9th Cir. 2015) (elements of a VPPA claim)
- Austin‑Spearman v. AMC Network Entm’t LLC, 98 F. Supp. 3d 662 (S.D.N.Y. 2015) (VPPA privacy right confers standing; discussion of "subscriber" meaning)
- Ellis v. Cartoon Network, 803 F.3d 1251 (11th Cir. 2015) (discussion of common meaning of "subscribe/subscriber")