NICK BALESTRIERI v. SPORTSEDTV, INC.
Case No. 25-cv-04046-SK
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
September 16, 2025
SALLIE KIM, United States Magistrate Judge
Regarding Docket No. 11, 13
This matter comes before the Court upon consideration of two motions filed by SportsEdTV (“Defendant“). First, Defendant filed a motion to dismiss pursuant to
BACKGROUND
This case is one of many filed around the country seeking to hold companies liable for alleged violations of consumers’ privacy arising from the use of the “Facebook Pixel” (also known as the “Meta Pixel“)—“an invisible piece of JavaScript code that, when installed on a website, tracks the identity and behavior of the website‘s users and transmits that information to Facebook.” (Dkt. No. 1, ¶ 9.) Facebook is a social media platform owned and operated by Meta Platforms, Inc. (“Meta“). (See id. at ¶ 1.)
Plaintiff alleges that Defendant violated the Video Privacy Protection Act (“VPPA“),
Plaintiff filed the Complaint on May 9, 2025. (Dkt. No. 1.) On July 11, 2025, Defendant moved to dismiss the Complaint under
ANALYSIS
A. Judicial Notice and Incorporation by Reference.
Defendant requests the Court take judicial notice of seven exhibits, or, in the alternative, deem the exhibits incorporated by reference. (Dkt. Nos. 12, 14.) Exhibits A-D consist of screenshots from Defendant‘s webpages captured on July 9, 2025, depicting Defendant‘s “ABOUT” page, Terms and Conditions, Privacy Policy, and various webpages linking to those policies. (Dkt. No. 11-1 (Ex. A-D); Dkt. No. 13-1 (Ex. A-D).) Defendant‘s motions rely on these documents to argue that Plaintiff consented to the disclosure of his PII, to contend that Plaintiff agreed to a choice of law clause, and to provide background information regarding Defendant‘s
First, Defendant‘s exhibits are not properly subject to judicial notice. The Court may take judicial notice of a fact that is “not subject to reasonable dispute” because it is “generally known” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
Defendant argues that “a court may take judicial notice of ‘publicly accessible websites’ whose accuracy and authenticity are not subject to dispute.” (Dkt. No. 12, p. 4 (misquoting Daniels-Hall v. Nat‘l Educ. Ass‘n, 629 F.3d 992, 998-99 (9th Cir. 2010)).) While it may be appropriate to take judicial notice of a website to show what the website communicated, it is not appropriate to take judicial notice of the contents of that website for their truth when those contents are in dispute. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (“Just because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth.“); Cappello v. Walmart Inc., No. 18-cv-06678-RS, 2019 WL 11687705, at *3 (N.D. Cal. Apr. 5, 2019) (“The simple act of posting something publicly on the Internet is insufficient assurance of an exhibit‘s accuracy.“).
Defendant essentially requests the Court accept as facts that the webpages submitted are the ones Plaintiff viewed and that Defendant did not transmit the video titles viewed by users. Not only are those facts disputed, but they form the crux of the dispute underlying this case. (Dkt. No. 21, p. 5 (“Plaintiff disputes the authenticity of these documents and their technical implications.“); see also Jackson v. Fandom, Inc., No. 22-cv-044234-JST, 2023 WL 4670285, at *2 (N.D. Cal. July 20, 2023) (denying the defendant‘s request for judicial notice because it was “unclear whether the webpages, Terms of Use, and Privacy Policy submitted” were the same versions the plaintiff viewed). Defendant cannot use requests for judicial to present its “own
Second, Defendant‘s exhibits are not incorporated by reference. “[I]ncorporation-by-reference is a judicially created doctrine that treats certain documents as though they are part of the complaint itself.” Id. at 1002. “The doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or doom—their claims.” Id. “[A] defendant may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff‘s claim.‘” Id. (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)). The “mere mention” of a document‘s existence, or the relevance of a document to a defense, are insufficient reasons to incorporate its contents by reference. Id.
As to Exhibits A-D—the screenshots of Defendant‘s webpages—Plaintiff does not refer to any of Defendant‘s webpages in his Complaint, does not mention Defendant‘s Terms and Conditions, and only mentions Defendant‘s Privacy Policy once. (Dkt. No. 1, ¶ 13.) “For ‘extensively’ to mean anything under Ritchie, it should, ordinarily at least, mean more than once.” Khoja, 899 F.3d at 1003. These documents do not form the basis of Plaintiff‘s complaint. Instead, they are only relevant to Defendant‘s consent defense. See id. at 1002 (“[I]f the document merely creates a defense to the well-pled allegations in the complaint, then that document did not necessarily form the basis of the complaint.“); see also Doe v. Meta Platforms, Inc., 690 F. Supp. 3d 1064, 1078 (N.D. Cal. 2023) (finding that the issue of whether plaintiffs actually consented is inappropriate at the pleadings stage); Thornton v. Mindvalley, Inc., No. 24-CV-00593-EKL, 2025 WL 877714, at *3 (N.D. Cal. Feb. 14, 2025) (denying incorporation by reference of privacy policy, terms & conditions, and cookie policy that were submitted to establish consent defense).
As to Exhibits E-G—the Facebook Pixel code used by Defendant and the Meta developer screenshots—the Complaint does not include any part of the Facebook Pixel code or rely in any way on Meta‘s explanations of how Facebook Pixel functions. (Dkt. No. 1.) Defendant argues that “any documents discussing the nature, function, and capability of the Facebook pixel” are incorporated because the Complaint refers extensively to the Facebook Pixel. (Dkt. No. 12, pp. 4-
Defendant‘s requests for judicial notice and incorporation by reference are denied.
B. Forum Non Conveniens and Venue Transfer.
Defendant asks the Court to dismiss the Complaint under the doctrine of forum non conveniens, or, in the alternative, to transfer this action to the Southern District of Florida, where Defendant resides. (Dkt. No. 13.) Both parties analyze the forum non conveniens and transfer factors separately in their briefing. (Id.; Dkt. No. 21.) However, the federal transfer statute,
District courts have discretion to transfer any civil action to any other district or division where it might have been brought “[f]or the convenience of parties and witnesses, in the interest of justice.”
Here, the parties do not dispute that venue is proper in the Southern District of Florida. (Dkt. Nos. 13, 21.) Venue is proper in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.”
1. Plaintiffs’ Choice of Forum.
A plaintiff‘s choice of forum generally weighs against transfer. See Decker, 805 F.2d at 483. Courts afford more weight to plaintiff‘s choice if the plaintiff has chosen to file in his home forum, and less weight if there is evidence of forum shopping or the plaintiff represents a class spanning multiple states. Greenley, 684 F. Supp. 3d at 1042-43 (citations omitted). Here, Plaintiff filed in his home forum. (Dkt. No. 1, ¶ 7.) Some events occurred in this District, some events occurred in the Southern District of Florida, and some events occurred in cyberspace. The Court discerns no forum shopping. While Plaintiff represents a nationwide class, he also represents a subclass consisting of only California residents. (Id. at ¶¶ 16-17.) On balance, Plaintiff‘s choice is entitled to significant weight, only slightly reduced by Plaintiff‘s representation of a nationwide class.
2. Convenience of the Parties.
Defendant resides in Florida. (Dkt. No. 1, ¶ 8.) Plaintiff, Plaintiff‘s counsel, and Defendant‘s counsel are all located in California. (Id. at ¶ 7, Dkt. Nos. 13, 21.) Accordingly, the convenience of the parties factor is neutral.
3. Convenience of the Witnesses.
“In considering the convenience factor, courts should consider not only the number of witnesses located in the respective districts, but also the nature and quality of their testimony in
Defendant does not carry its burden to state the witnesses’ “identities, locations, and content and relevance of their testimony.” See id. (citations omitted). Instead, Defendant states only that it “would have to call more witnesses, including web developers, and would have more witnesses called by Plaintiff, compare to Plaintiff [sic]” and “[m]ost, if not all, of the witnesses are in Florida where Defendant‘s business is located.” (Dkt. No. 14, p. 14.) Further, Plaintiff makes a similar showing that it intends to depose employees of Meta, which is headquartered in this District. (Dkt. No. 21, p. 25.) Moreover, advances in videoconferencing technology and the corresponding growth of remote depositions has rendered the location of witnesses less important in an analysis of a motion to transfer. See Panavision Int‘l, L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998) (“[T]he location of the evidence and witnesses . . . is no longer weighed heavily given the modern advances in communication and transportation.“); Salebuild, Inc. v. Flexisales, Inc., 633 F. App‘x 641, 643 (9th Cir. 2015) (“[I]n this age of robust video conferencing technology, one would expect relative travel costs to be a non-issue, regardless of the precise number of witnesses present in either locale.“) (quoting In re Herbert, Nos. CIV. 13-00452 DKW, CIV. 13-00705 DKW, 2014 WL 1464837, at *6 (D. Haw. Apr. 14, 2014)); Antaris Techs., Inc. v. Matthews, No. 25-CV-04048-RS, 2025 WL 1939868, at *4 (N.D. Cal. July 15, 2025) (“In the digital age, access to evidence or even witnesses from a different state does not impose a large burden on the parties.“).
As Defendant has not carried its burden to demonstrate witness inconvenience, this factor is neutral.
4. Ease of Access to Evidence.
“Ease of access to evidence is generally not a predominate concern in evaluating whether to transfer venue because ‘advances in technology have made it easy for documents to be transferred to different locations.‘” Byler v. Deluxe Corp., 222 F. Supp. 3d 885, 906 (S.D. Cal. 2016) (quoting Metz v. U.S. Life Ins. Co. in City of New York, 674 F. Supp. 2d 1141, 1148 (C.D. Cal. 2009)). Access to evidence may still be relevant where the evidence cannot be moved or requires site inspection. That is not the case where, as here, the evidence is electronic.
Defendant‘s argument that “the backup tapes or hard drives of Plaintiff‘s [sic] web servers cannot be produced as documents” is unavailing. (Dkt. No. 22, p. 13.) Defendant has not explained why backup tapes and hard drives will be relevant to this litigation, and the Court cannot glean any need for this evidence. See Ickes v. AMC Networks Inc., No. 23-CV-00803-SI, 2023 WL 4297577, at *5 (N.D. Cal. June 30, 2023) (noting that most evidence would be electronically available in analogous Facebook Pixel case); Carroll v. La-Z Boy Inc., No. 22-CV-08961-JSW, 2023 WL 2699984, at *2 (N.D. Cal. Mar. 29, 2023) (same). The access to evidence factor is neutral.
5. Familiarity of Each Forum with Applicable Law.
Plaintiff alleges violations of federal and California law. (Dkt. No. 1.) Both the Northern District of California and the Southern District of Florida are equally familiar with federal law. The Southern District of Florida is competent to apply California law. However, California district courts are naturally more familiar with California law than district courts in other states. See Greenley, 684 F. Supp. 3d at 1043. Accordingly, this District is most familiar with the law at issue.
Defendant relies on its Terms and Conditions specifying Florida choice of law to argue that Florida courts are more familiar with the applicable law. (Dkt. No. 15, p. 14; see also Dkt. No. 13-1 (Ex. C) p. 26 (“These Terms shall be governed and construed in accordance with the laws of Florida, United States, without regard to its conflict of law provisions.“)) As discussed above, the Court has denied judicial notice or incorporation by reference of Defendant‘s Terms and Conditions. Further, even if Florida law applies to the construction of Defendant‘s Terms and Conditions, Plaintiff‘s claims do not arise out of Defendant‘s Terms and Conditions. Rather, Plaintiff‘s claims arise out of federal and California statutes. Accordingly, this factor weighs against transfer.
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This factor considers whether judicial economy will be served by transferring a case to a forum where related cases are pending. See Greenley, 684 F. Supp. 3d at 1045. The parties have not identified any related cases pending in either this District or the Southern District of Florida. (Dkt. Nos. 13, 21, 22.) Therefore, this factor is neutral.
7. Local Interest in the Controversy.
The consideration of local interest takes into account both the “local interest in having localized controversies decided at home” and the “unfairness of burdening citizens in an unrelated forum with jury duty.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981) (internal quotations omitted). Generally, “districts all over the country are interested” in “a nation-wide putative class-action.” Huntsman v. Sw. Airlines Co., No. 19-CV-00083-PJH, 2019 WL 3254212, at *5 (N.D. Cal. July 19, 2019). However, California has a particularly high interest in enforcing its consumer privacy law. See Greenley, 684 F. Supp. 3d at 1044-45 (explaining that California has a demonstrated interest in privacy stemming from the California Constitution‘s guarantee of privacy rights and the “breadth and depth” of California‘s privacy statutes). On the other hand, the Southern District of Florida has an interest in adjudicating disputes involving a business headquartered within its jurisdiction. See Walters v. Famous Transports, Inc., 488 F. Supp. 3d 930, 941 (N.D. Cal. 2020) (“[T]here is in fact a local interest in of [sic] citizens in deciding matters pertaining to businesses that are headquartered in the state.“). On balance, the Court concludes that this factor is neutral.
8. Relative Court Congestion.
Both parties argue that this factor is neutral. (Dkt. No. 13, p. 15; Dkt. No. 21, p. 30.) Considering the Court‘s own docket, the Court finds that it can adjudicate this matter expediently and efficiently. See Huntsman, 2019 WL 3254212, at *5. This factor weighs against transfer.
9. Balancing.
Plaintiff‘s choice of forum, the Court‘s familiarity with California law, and the Court‘s ability to adjudicate this matter expediently disfavor transfer. All other factors are neutral. Accordingly, the Court DENIES Defendant‘s motion to dismiss or transfer this action.
Defendant moves to dismiss Plaintiff‘s VPPA claim under
1. Injury.
Defendant argues that Plaintiff has not suffered a “concrete” injury. (Dkt. No. 11, pp. 13-18.) A concrete injury is “real, and not abstract.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citation omitted). Concrete harms include “traditional tangible harms, such as physical harms and monetary harms.” Id. at 425. Intangible injuries may be concrete if they have a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts,” such as “reputational harms, disclosure of private information, and intrusion upon seclusion.” Id.
Disclosure of private information that would be “highly offensive to a reasonable person” bears a close relationship to traditional common law privacy torts. See id.; Phillips v. U.S. Customs & Border Prot., 74 F.4th 986, 993, 996 (9th Cir. 2023) (citing Restatement (Second) of Torts § 652B (intrusion upon seclusion)); see also id. § 652D (“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.“).
In 2017, the Ninth Circuit held that “the VPPA identifies a substantive right to privacy that suffers any time a video service provider discloses otherwise private information.” Eichenberger v. ESPN, Inc., 876 F.3d 979, 983-84 (9th Cir. 2017). The court reasoned that the VPPA “protects generally a consumer‘s substantive privacy interest in his or her video-viewing history” such that “every disclosure of an individual‘s ‘personally identifiable information’ and video-viewing history offends the interests that the statute protects.” Id. at 983. There, the plaintiff alleged that a streaming service violated the VPPA by disclosing the plaintiff‘s device serial number and the identity of the videos he watched. Id. at 981. The court rejected the defendant‘s argument that the plaintiff lacked Article III standing, but dismissed the plaintiff‘s VPPA claim on the merits on the grounds that the plaintiff‘s device number did not constitute PII. Id. at 982, 985-86.
In 2021, the Supreme Court decided TransUnion, clarifying that legislative “creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III . . . .” 594 U.S. at 426. TransUnion thus rejected the idea that violation of a privacy statute is per se an injury-in-fact. Id. In TransUnion, the Court addressed circumstances where a defendant‘s violation of the Fair Credit Reporting Act did not inflict concrete harm on the plaintiff: the plaintiffs’ credit files contained misleading alerts, but no injury occurred because those alerts were never disseminated. Id. at 433-39.
Unlike the Fair Credit Reporting Act, it is not possible to establish a violation of the VPPA without causing actual harm to the plaintiff‘s privacy interests. By its terms, every violation of the VPPA requires the disclosure of a consumer‘s personally identifiable information and video-viewing history. See Eichenberger, 876 F.3d at 984 (“[E]very
It follows that the Ninth Circuit has declined to revisit Eichenberger in the wake of TransUnion. In Popa v. Microsoft Corp., _ F.4th _, 2025 WL 2448824 (9th Cir. Aug. 26, 2025), the court held that an alleged violation of Pennsylvania‘s wiretapping law did not give rise to a concrete injury because the information collected did not reveal private information. Id. at *5. The court distinguished Eichenberger because it “accounted for the individual circumstances giving rise to the plaintiffs’ alleged injuries rather than simply greenlighting a per se rule for privacy statutes.” Id. at *8. While the court acknowledged that “we might analyze [the VPPA] differently today, especially after the Supreme Court‘s decision in TransUnion,” it did not explicitly or implicitly overturn Eichenberger. Id. The Ninth Circuit and its district courts have continued to cite Eichenberger with approval following TransUnion. E.g., Jones v. Ford Motor Co., 85 F.4th 570, 574 (9th Cir. 2023) (per curiam); Morgan v. Twitter, Inc., No. 23-3764, 2025 WL 1248821, at *2 (9th Cir. Apr. 30, 2025); Edwards v. MUBI, Inc., 773 F. Supp. 3d 868, 877 (N.D. Cal. 2025); Cantu v. Tapestry, Inc., No. 22-CV-1974-BAS-DDL, 2023 WL 4440662, at *4 (S.D. Cal. July 10, 2023). Further, other federal courts of appeals considering the issue post-TransUnion have concluded that disclosure of video-viewing history constitutes a concrete injury. Pileggi v. Washington Newspaper Pub‘g Co., LLC, 146 F.4th 1219, 1227 (D.C. Cir. 2025) (citing Eichenberger); Salazar v. Paramount Glob., 133 F.4th 642, 647 (6th Cir. 2025) (same); Salazar v. Nat‘l Basketball Ass‘n, 118 F.4th 533, 544 (2d Cir. 2024) (same). All three of these cases considered disclosures of video-viewing history through the Facebook Pixel.
In sum, the requirement of concrete injury for Article III standing is satisfied when a
Defendant also faults Plaintiff for not alleging exactly when the violations occurred or which video titles were disclosed. (Dkt. No. 11, p. 14.) Defendant cites no cases supporting such a particular pleading requirement, and the weight of authority demonstrates that such specific pleading is not required. E.g., Edwards, 773 F. Supp. 3d at 877; Cantu, 2023 WL 4440662, at *4.
Next, Defendant argues that Plaintiff has not alleged a “particularized” injury because his PII was not actually disclosed. (Dkt. No. 11, pp. 15-16.) The Court will not consider these arguments as part of Defendant‘s Rule 12(b)(1) motion because they attack the merits of Plaintiff‘s VPPA claim, not his standing to sue. See Cantu, 2023 WL 4440662, at *7 n.5. Moreover, in advancing this argument, Defendant relies on exhibits that the Court has declined to judicially notice or incorporate by reference, as discussed above.
Plaintiff has alleged a concrete injury.
2. Fairly Traceable.
“[P]laintiffs must show that the injury is causally linked . . . to the [defendant‘s] alleged misconduct, and not the result of misconduct of some third party not before the court.” Wash. Env‘t Couns. v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013). Defendant argues that Plaintiff has not sufficiently connected Defendant‘s conduct with harm, and that another actor, Meta, is the actor who caused Plaintiffs harm. (Dkt. No. 11, pp. 17-18.) These arguments are unavailing. This case does not involve an attenuated causal chain. The harm—disclosure of Plaintiff‘s PII—would not have occurred but for Defendant‘s alleged use of the Facebook Pixel. Meta could not
Plaintiff has alleged causation, and given that there is a concrete injury, Defendant‘s arguments about standing are not persuasive.
D. Failure to State a Claim.
A motion to dismiss is proper under
Even under the liberal pleading standard of
1. VPPA
To state a claim for unlawful disclosure under the VPPA, “a plaintiff must allege that (1) a defendant is a ‘video tape service provider,’ (2) the defendant disclosed ‘personally identifiable information concerning any customer’ to ‘any person,’ (3) the disclosure was made knowingly, and (4) the disclosure was not authorized by
i. Personally Identifiable Information.
“‘[P]ersonally identifiable information’ means only that information that would ‘readily permit an ordinary person to identify a specific individual‘s video-watching behavior.‘” Eichenberger, 876 F.3d at 985 (quoting In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 267 (3d Cir. 2016)). PII includes information that “standing alone, identifies a person” as well as information that is “capable of” identifying a person. Id. at 984.
Plaintiff alleges that Defendant transmitted his Facebook ID “by reading a cookie on the user‘s computer labeled ‘c_user,‘” with which “any ordinary person can look up the user‘s Facebook profile and name.” (Dkt. No. 1, ¶¶ 3, 11.) Defendant argues that an ordinary person would not be able to discern Plaintiff‘s Facebook ID from the c_user cookie. (Dkt. No. 11, p. 19.) The Second Circuit adopted this reasoning to dismiss a VPPA claim based on Facebook Pixel technology. Solomon v. Flipps Media, Inc., 136 F. 4th 41, 54-55 (2d Cir. 2025). There, the plaintiff‘s complaint included “exemplar screenshots” depicting the 29 lines of code transmitted from defendant to Facebook via Facebook Pixel. Id. at 54. The court found it implausible that an ordinary person would discern the plaintiff‘s Facebook ID from this code. Id. Further, the court found it implausible that an ordinary person would know how to use a Facebook ID to access a person‘s Facebook profile, comparing a Facebook ID to the device code found insufficient in Eichenberger. Id. at 54-55.
However, Solomon is neither on point nor controlling. First, while the Solomon complaint included information about the code used to transmit the Facebook ID, Plaintiff‘s complaint contains no such detail, and the Court has rejected Defendant‘s effort to introduce the Facebook Pixel code, as discussed above. Plaintiff alleges that the Facebook Pixel “collects the user‘s Facebook ID . . . and sends that information to Facebook.” (Dkt. No. 1, ¶ 3.) At this early stage, the Court must treat these non-conclusory factual allegations in the Complaint as true. See Sanders, 794 F.2d at 481.
Second, Solomon is contrary to the weight of authority in this Circuit. “Most, if not all,
Some courts have held that Facebook IDs are plausibly PII only if the plaintiff also alleges their Facebook page included information that could be used to readily identify them and/or is publicly accessible. See Ghanaat, 689 F. Supp. 3d at 720 (dismissing VPPA claim with leave to amend “because [plaintiffs] d[id] not allege their Facebook pages contain[ed] any personal information, such as their names or email addresses.“); Heerde v. Learfield Commc‘ns, LLC, 741 F. Supp. 3d 849, 857-58 (C.D. Cal. 2024) (“Plaintiffs fail to allege their PII was disclosed because they do not identify what information on their Facebook pages, if any, was viewable and could be used to identify them.“). Other courts have declined to adopt “that granular a test” and have found sufficient allegations that “[a]nyone who possesses an [Facebook ID] may use this number to quickly and easily locate, access, and view the corresponding Facebook profile,’ which in turn can reveal a user‘s name or other personal information.” Stark v. Patreon, Inc., 635 F. Supp. 3d 841, 853 (N.D. Cal. 2022).
Here, Plaintiff does not allege that his Facebook profile contains identifying information and is publicly accessible. Instead, he alleges that “With [the Facebook ID], any ordinary person can look up the user‘s Facebook profile and name.” (Dkt. No. 1, ¶ 11.) The Court find that
Defendant also faults Plaintiff for not alleging that his video-viewing history and Facebook ID were disclosed “together.” (Dkt. No. 22, p. 8.) The Court declines to impose a “magic words” requirement. Moreover, Plaintiff‘s allegations suggest the video-viewing history and Facebook ID were disclosed together. (Dkt. No. 1, ¶ 12 (“the Facebook pixel transmits that video title along with the user‘s Facebook ID to Facebook.“).)
In sum, Plaintiff alleges that an ordinary person could use his Facebook ID to determine his identity, and Defendant‘s arguments to the contrary rely on evidence not before the Court on this motion to dismiss. The Court therefore finds that Plaintiff has sufficiently alleged that the information disclosed was PII.
ii. Knowledge.
The VPPA prohibits only a “knowing” disclosure.
Defendant argues that it “would not have known it was disclosing” Plaintiff‘s PII because
Defendant‘s motion to dismiss Plaintiff‘s VPPA claim is DENIED.
2. CIPA.
CIPA “broadly prohibits the interception of wire communications and disclosure of the contents of such intercepted communications.” Tavernetti v. Sup. Ct. of San Diego Cnty., 583 P.2d 737, 739 (Cal. 1978).
(1) where a person “by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection . . . with any telegraph or telephone wire, line, cable, or instrument“;
(2) where a person “willfully and without consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit“;
(3) where a person “uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained“; and
(4) where a person “aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above.”
Although the language of
Defendant‘s reliance on Rodriguez is misplaced. There, the plaintiff failed to allege that the eavesdropper (LivePerson) actually engaged in behavior that constitutes wiretapping because “Plaintiff does not allege that Defendant knew that LivePerson was using the chat data beyond storing it for Defendant or that LivePerson was distributing the chat data to Meta.” 722 F. Supp. 3d at 1124. Here, in contrast, Plaintiff did allege “that Facebook uses the information transmitted by the Facebook pixel to deliver targeted ads to the user, thereby generating revenue for Facebook.” Defendant also relies on its Privacy Policy to argue that Plaintiff consented to disclosure, (Dkt. No. 22, p. 12), which the Court will not consider at this stage.
CONCLUSION
For the foregoing reasons, Defendant‘s motion to dismiss for forum non conveniens or transfer venue is DENIED, and Defendant‘s motion to dismiss pursuant to
IT IS SO ORDERED.
Dated: September 16, 2025
SALLIE KIM
United States Magistrate Judge