MEMORANDUM AND ORDER
Plaintiff, Josephine James Edwards,
BACKGROUND
I. The Michigan Video Rental Privacy Act
In 1988, Michigan enacted the VRPA “to preserve personal privacy with respect to the purchase, rental, or borrowing of’ certain goods. Compl. ¶ 14. The law was enacted following the passage of the federal Video and Library Privacy Protection Act, 18 U.S.C. § 2710, and paralleled the enactment of similar consumer privacy laws in eleven other states. Compl. ¶¶ 13-17; see Boelter v. Hearst Commc'ns, Inc.,
The law’s prohibition is subject' to five exceptions: .disclosure is allowed “[w]ith the written permission of the. customer”; “[p]ursuant to a court order”; to “collect payment” from the customer so long as the customer “has received written notice that the payment is due and has failed , to pay ,,. within a reasonable time after notice”; if “the disclosure is for the exclusive purpose of marketing goods and services directly to the consumer,” so long as the consumer receives “written notice that the customer may remove his or her name at any time by written notice to the person disclosing the information”; and pursuant to a search warrant or grand jury subpoena. Id. § 3.
Violation of the law constitutes a misdemeanor, id. § 4, and .customers who are “identified in ,,.' information that is disclosed in violation of [the] act” may bring a civil action to recover “actual damages, including damages for emotional distress, or $5,000.00, whichever is greater,” as well as costs and reasonable attorneys’ .fees, id. §5.
In May 2016, during the pendency of this action, the Michigan' legislature amended the VRPA. See S.B, 490, 98th Leg., Reg. Sess., P.A. No. 92 (Mich. 2016) (to be codified at M.C.L. § 445,1711 et seq.) (“Am, VRPA”). The amendment added an exemption for the disclosure of identifying information if the disclosure -is “incident to the [disdoser’s] ordinary course of business.” Am. VRPA § 3(d). This new exception, however, “only applies to a record or information that is created or obtained after” the amendment’s effective date. Id. The amended VRPA no longer allows an individual to sue for statutory damages. See Am. VRPA § 5(2). In deciding Defendant’s prior motion to dismiss, the Court concluded that the amendment does not apply retroactively and the pre-amendment version of the VRPA applies to this case. Boelter,
II. Plaintiff
- Plaintiff—who goes by Josephine James or Josephine James Edwards—is a Michigan resident. Def. 56,1 ¶¶ 14-20. Plaintiff has subscribed to a number of magazines published by Defendant, including Good Housekeeping, O, The Oprah Magazine, and Bedbook. Id, ¶ 47. Plaintiff alleges that Defendant disclosed her personal information—including her name and address and the titles of magazines to which she subscribed—to third parties for Defendant’s own gain, and 'that Plaintiff was not notified of and did not consent to these disclosures. See Compl. ¶¶ 7, 8, 58-60.
Among other subscriptions, Plaintiff maintained a subscription to Good Housekeeping from April 2009 to March 2010. PI. 56.1 ¶ 48. Plaintiff testified that she “would not have subscribed” to Good Housekeeping if the protections of the VRPA did not exist: “The protections are more important to. me than the value of the magazine. ,,. [M]y privacy is more important than a magazine,” Findikyan Decl. 1 Ex. H (“PI. Dep.”), at 193:22-25. Plaintiff ex
III. Hearst’s Privacy Practices
In each issue of Good Housekeeping sent to Plaintiff from April 2009 to March 2010, the following notice was included in the issue: “Prom time to time, we make our subscriber list available to companies who sell goods and services by mail , that we believe would interest our readers.” Def. 66.1 ¶ 49; PI. 66.1 ¶204. The notice provided instructions on how to opt out of such mailings. Id. There is no evidence that Plaintiff ever. requested to opt out. Def. 56.1 ¶ 78.
In addition, since at least April 2012, Hearst has maintained a privacy policy on its website. Id. ¶ 66; see Findikyan Deck ¶ 31 & Ex. DD (“Def. Privacy Policy”), EOF No. 136. This policy is available by following a “Privacy Policy” link at the bottom of e-mails from Good Housekeeping. Def. 56.1 ¶63. Plaintiff received emails from Good Housekeeping from January 2012 to at least July 2016, id. ¶ 62, but testified that she never saw Hearst’s privacy policy, Pl. Dep. 172:20-173:12.
The privacy policy indicates that “if you subscribe offline to one of the magazines published by Hearst..., from time to time we make your postal addresses available to companies for marketing purposes.” Def. Privacy Policy § 1(d). The policy states that Hearst “may combine and use any and all information we collect on you either online or otherwise, including from third parties, for marketing purposes.” Id. § 3(b). The policy also notes that “Hearst may (and you [the consumer] authorize us to) share or disclose Personally Identifiable Information” to “third party service providers to provide products, services or functions on our behalf (such as sending emails or processing credit cards or fulfilling subscriptions),” and third-party entities that “want[] to promote goods and services we think would be of interest to you.” Id'. § 4(a)(i), (vi). The privacy policy also states that a consumer’s contact information may be disclosed “to third parties to allow them to market their products or services to you or for other marketing purposes,” and that a consumer can opt-out by contacting Hearst or adjusting their online account preferences. Id. § 5(d).
IV. Defendant’s Use of Plaintiffs Information
Defendant’s Consumer Marketing department maintains a database of current and former subscribers, of its magazines. Def. 56.1 ¶ 5. The database was established on or about June 1, 2008, arid includes information relating to all 'magazine subscribers from June 2008 to the present, and information about some, but not all, subscribers who became inactive prior to June 2008. Id. ¶6. The records include names, mailing addresses, subscription information, promotional history, donor information for gift subscriptions, and demographic and other information provided to Defendant by third parties. Id. ¶¶ 7-9.
Defendant admits that it transmitted or authorized transmissions of Plaintiffs identifying information to six
Since mid-2008, Defendant’s marketing database has been hosted and maintained by Acxiom Corporation (“Acxiom”). Def. 56.11 ¶¶ 06-07. Defendant owns or licenses all the data residing in the database, id. ¶ 111, and pays Acxiom monthly service fees to host, maintain, and operate the database and perform related services, id. 1Í115. At Defendant’s direction, Acxiom has transmitted data from the database to some of Defendant’s third-party service providers and partners. Id. ¶¶ 116-17. Acx-iom has no authority to transmit Defendant’s data without Defendant’s permission and may not use the data for its own purposes. Id. ¶¶ 119, 121-22. Pursuant to the contract between Defendant and Acx-iom, Acxiom would perform all services as an “independent contractor, and nothing contained herein shall be deemed to create any employment, associate, partnership, joint venture, or relationship of principal and agent or master and servant” between the two parties. Pl. 56.1 ¶ 10.
In May 2008, Acxiom received Plaintiffs identifying information from Defendant. Pl. 56.1 ¶ 18; see Márchese Decl. 1 Ex. 11. In the week prior to December 6, 2012, Acxiom received updated information about Plaintiff from Defendant. Pl. 56.1 ¶ 19; see Márchese Decl. 1 Ex. 5 (“Vanth-ournout Dep.”), at 173:5-10. Acxiom’s records include Plaintiffs name, address, and subscription history. Pl. 56.1 ¶ 20; Vanth-ournout Dep. 249:2-250:3.
B. Experian Marketing Solutions, Inc.
In February 2001, Defendant entered into a contract with Experian Marketing Solutions, Inc. (“Experian”). Pl. 56.1 ¶¶ 79. Defendant would send approximately 14 to 20 million records of current and former subscribers a year to Experian, and Expe-rian would “overlay” additional data about these subscribers, such as political affiliation or demographic information. Id. ¶¶ 81, 86. The number of names Hearst submitted rose in 2012. Id. ¶ 87. At least once a year, Defendant directs Acxiom to provide data to Experian. Pl. 56.1 ¶¶ 88-92. Defendant’s contract with Experian provides that they are “independent contractors” and states that “[njothing in [the contract] shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties.” Pl. 56.1 ¶80.
In 2011, 2012, 2013, and 2014, Defendant sent Experian data regarding Plaintiff. Id. ¶¶ 91-94. Defendant’s database contains information acquired from Experian about Plaintiff. Id. 1Í 95. In March 2015, Defendant ceased sending subscription magazine titles as part of the data transmissions to Experian, and Defendant’s June 2015 data transmission to Experian did not include
C. “Company 1”
In May 2007, Defendant entered into a contract to join the [Redacted] (“Company 1”) data cooperative. Def. 56.11 ¶¶ 147—48; PI. 56.11 ¶¶ 99-100. A data cooperative allows a company to receive personal information of potential new customers in exchange for submitting information about their current or past customers. PI. 56.1 ¶ 101; Findikyan Decl. 1 Ex. I (“Murphy Dep.”), at 346:5-12. Pursuant to its contract, Defendant was required to contribute its “customer file at the beginning of th[e] relationship and send[ ] complete previous-month customer history transaction information” on a monthly basis. PL 56.1 ¶ 102.
Once a month, Defendant directed Acx-iom to transmit to Company 1 certain data, including name, address, and magazine title. Id. ¶¶ 107-08. It is not clear what years these transfers occurred. For instance, Defendant states that “[b]y 2011, Hearst was no longer participating in the [Company 1 data c]o-op” and that “Hearst renewed its participation ... in 2012 on a limited basis.”
The evidence regarding Defendant’s transmission of personal information about Plaintiff is similarly murky. A representative from Company 1 stated .that it did not find any raw data files from Defendant containing information about Plaintiff. Márchese Decl. 1 Ex. 28. Company 1 did produce a “partial record for the James household,” id., which is- dated June: 7, 2014, and does include information identifying Plaintiff at her Michigan address and mentions the magazine Good Housekeeping, Márchese Decl. 1 Ex. 27. ■
D. “Company 2”
On February 28, 2007, Defendant entered. into a contract with [Redacted] (“Company 2”), a data cooperative, under which Defendant would “contribute its subscriber file and related transaction data” in exchange for receiving leads on potential new customers. Id. ¶¶ 117-18, 120, 122. Only entities that provide customer data can receive new data from Company 2. Id. ¶ 121. Pursuant to the contract, Defendant was required to provide “(a) Active Subscriber Name and Address; (b) Active Subscriber historical transaction data including most recent subscription date and dollar amount, source of latest order, and such' other data as may be agreed upon; [and] (c) Selected Expired Subscriber name, address, and transaction information similar to that provided for active subscribers.” Id. ¶ 122.
E. Dunn Data Co., Inc.
Pursuant to a December 2008 contract with Dunn Data Co., Inc. (“Dunn Data”), Defendant would provide Dunn Data with certain data about active and expired subscribers in exchange for money and reduced rates when using Dunn Data’s services, PI. 56.1 ¶ 53-54. Dunn Data is a “data, aggregator,” which means it “acquired data from companies like [Defendant] and companies like Equifax,... Time Inc., Condé Nast, Meredith and so on.” Findikyan Decl. 1 Ex. K (“Dunn. Dep.”), at 11:19-12:3. Dunn Data collects this data, matches it “to government records and other compiled information about consumers,” and compiles it into “a large database.” Id. From 2008 to 2013, Defendant provided certain customer data to Dunn Data on a quarterly basis, receiving $156,000 in total and access to Dunn Data’s database products at a discount. PL. 56.1 ¶¶ 72-74. Defendant cancelled its contract with Dunn Data in 2013. Id. ¶ 78.
Plaintiffs records, indicating her status as an expired Good Housekeeping magazine subscriber, were “eligible” to be included in three scheduled transmissions to Dunn Data by Defendant from June 2011 to March 20l2. Pl. 56.11 ¶ 75; Murphy Dep. 366:19-367:18. Stephen Dunn, Dunn Data’s owner, testified at a deposition that, at some unspecified time, Dunn Data received Plaintiffs name, address, and the titles of Defendant’s magazines to which she subscribed. Pl. 56.1 ¶ 76; Dunn Dep. 130:7-17.
F. “Company 3”
Defendant entered into a contract with [Redacted] (“Company 3”) in November 2009. Pl. 56.1 ¶35. Pursuant to the contract, Defendant agreed to provide “names and addresses of Hearst active subscribers, expires, and new moves” relating to thirteen different publications. Id. ¶ 36; Márchese Decl. 1 Ex. 16, at 1, 5. Defendant transmitted data to Company 3 monthly and committed to delivering millions of records each year. Pl. 56.1 ¶ 37; see also id. ¶¶ 42-43. In exchange, Defendant received an annual license fee. Id. ¶ 38. The contract provided that “[t]he parties are independent contractors under this Agreement and no other relationship is intended, including, but not limited to, customer, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship.” Id. ¶ 41.
Under the contract, Plaintiffs identifying information was eligible to be transmitted by Acxiom to Company 3 each month from July 2011 to March 2015. Id. ¶ 47; Murphy Dep. 304:22-305:5. Defendant does not dispute that on December 1, 2014, January 5, 2015, February 2, .2015, and March 4, 2015, Acxiom transmitted Plain
V, Procedural History
On May 21, 2015, former plaintiff Suzanne 'Boelter filed a class action against Defendant alleging violations- of the VRPA and unjust enrichment. ECF No. 1. On November 24, 2015, Plaintiff filed a class action asserting similar claims. Edwards v. Hearst Commc’ns, Inc., No. 15 Civ. 9279, ECF No. 1. The two cases were consolidated for all purposes on February 8, 2016, ECF No. 66, and on February 26, 2016, Boelter and Plaintiff filed an amended complaint, ECF No. 67. Defendant filed a motion tb' dismiss and, after extensive briefing including supplemental briefing on the Supreme Court’s decision in Spokeo, Inc. v. Robins, the Court issued a memorandum and order (the “2016 Opinion”) denying Defendant’s motion. ECF No. 81. On October 17, 2016, the Court so-ordered Boelter’s stipulation of dismissal. ECF No. 125.
DISCUSSION
I. Legal Standards
A. Rule 12(b)(1) Motion.
Following Discovery
In resolving a motion to dismiss for lack of subject matter jurisdiction, “the district court must take all uncontroverted facts in the complaint.,. as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc.,
If a defendant’s evidence “ ‘re-vealfs] the existence of factual problems,’ ” a plaintiff “will need to come forward with evidence of [her] own to controvert that presented by the defendant.” Carter,
B. Motion for Summary Judgment
On a motion for summary judgment, “[t]he court, shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The .moving party bears the initial burden of pointing to evidence in the record, “including depositions, documents[,] ... [and] affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A), “which it believes demonstrate^] the absence of a genuine issue of material, fact,” Celotex Corp. v. Catrett,
II. Defendant’s Motion to Dismiss
Defendant- argues that Plaintiff lacks standing to bring this action because Defendant’s alleged violation of the VRPA does not constitute a concrete injury. Defendant is incorrect.
' In denying Defendant’s first motion to dismiss, the Court found that “[a]s alleged, Plaintiff[ ] suffered a particularized, concrete injury-in-fact—the violation of [her] rights under -the VRPA, along with economic harm—that was caused by Defendant and that can be remedied by court action” and concluded that at that stage, “the pleadings are sufficient to establish Plaintiffs’ standing to sue.” Boelter,
“It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged.” Robinson V. Gov’t of Malaysia,
To establish standing, a plaintiff must allege “(1) an injury that is (2) ‘fairly traceable to the defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed by the requested relief.’” Lujan v. Defs. of Wildlife,
Although “tangible injuries are perhaps easier to recognize” as concrete, an “intangible” harm may also be concrete where, for example, an otherwise de facto injury that was inadequate at law has been “identif[ied] and elevat[ed]” by a legislature. Id. For that reason, “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III.” Id. However, “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id.
Defendant contends that Plaintiffs alleged injury falls into the first category articulated in Spokeo—that is, a mere technical violation of the VRPA “divorced from any concrete harm”—and not the second category, which encompasses a violation of a statute that, in itself, constitutes an injury in fact. Spokeo,
First, every court to consider the issue of standing under the VRPA has concluded that such a violation constitutes a concrete injury in and of itself. Earlier this year, the Sixth Circuit addressed the issue of standing under the VRPA, and concluded that “the disclosure of that information is a cognizable injury in fact for purposes of Article III standing.” Coulter-Owens,
Plaintiffs alleged injury is not a “bare procedural violation,” but a substantive violation that strikes at the long-recognized right to privacy. Both before and after Spokeo, courts have held that a plaintiff aggrieved under the federal Video and Library Privacy Protection Act has a concrete and actionable injury. See, e.g., Condé Nast,
Finally, although the substantive violation of the VRPA is sufficient to confer standing, Plaintiff has testified to additional economic injuries, explaining that she would not have purchased a- subscription to any Hearst magazine had she known that her personal information would be disclosed. PI. Dep. 192:9-193:25. The Second Circuit recently declined to find that plaintiffs had standing where they “fail[ed] to allege that they would not have purchased the life insurance and annuity riders .,. had they known of [the defendant’s] alleged shadow insurance practices,” suggesting that a contention like Plaintiff’s would be sufficient to establish standing. Ross v. AXA Equitable Life Ins. Co.,
Accordingly, Defendant’s motion to dismiss is DENIED.
III. Defendant’s Motion for Summary Judgment
Defendant moves ■ for summary judgment on five legal theories that would narrow or eliminate its potential liability: (i) that some of Plaintiffs VRPA claims are
A. Tolling
First, Defendant argues that some of Plaintiffs VRPA claims are time-barred by Michigan’s three-year statute of limitations. See M.C.L. § 600.5805(10). Plaintiff argues that her claims should be equitably tolled based on two ' cases in which Plaintiff was a putative class member: Grenke v. Hearst Communications, Inc., No. 12 Civ. 14221, which was filed on September 24, 2012, in the Eastern District of Michigan and voluntarily dismissed on February 23, 2015; and Boelter, with which Plaintiffs case was consolidated before the Boelter plaintiff was dismissed. “[A] federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether, and to what extent, the statute of limitations should be tolled by the filing of a putative class action in another jurisdiction.” Casey v. Merck & Co.,
Turning then to Michigan law, the parties do not dispute that Michigan has “essentially eliminated” equitable tolling, and instead requires that tolling be dictated by statute. Colen v. Corizon Med. Servs., No. 14 Civ. 12948,
(F) Statute of Limitations.
(1) The statute of limitations, is tolled as to all persons within the class described in the complaint on the commencement of an action asserting a class action.
(2) The statute of limitations resumes running against dass members other than representative parties and intervenors:
(a) on the filing of a notice of the plaintiffs failure to move for class certification under subrule (B)(2);
(b) 28 days after notice has been made under subrule (C)(1) of the entry, 'amendment, or revocation of an order of certification eliminating the person from the class;
(c) on entry of an order denying certification of the action as: a class action;
(d) on submission of an election to be excluded;
(e) on final disposition of the action.
(3) If the circumstance that brought about the resumption of thé running of the statute is superseded by a further order of the trial court, by reversal on appeal, -or otherwise, the statute of limitations shall be deemed to have*188 been tolled continuously from the commencement of the action.
M.C.R. 3.501(F). As the Michigan Supreme Court has explained, this provision was “modeled after” the United States Supreme Court’s decision in American Pipe and Constr. Co. v. Utah,
Defendant first argues that M.C.R. 3.501(F) “does not apply to the facts of this case '[because] it only governs cases pending in Michigan state courts.” Def. Opp. 45 (citing M.C.R. 1.103). This argument is unpersuasive: although M.C.R. 1.103 states that the Michigan Court Rules govern courts “established by the constitution and laws of the State of Michigan,” M.C.R. 1.103, federal courts look to state law to determine tolling, Casey,
Defendant contends that Grenke should not toll Plaintiffs claims because Grenke was voluntarily dismissed with prejudice after it was discovered that the plaintiff lacked standing. Def. Opp. 42 n.32 (citing Grenke, ECF No. 95). Defendant directs the Court-to the tolling exception under American Pipe and its progeny where the statute of limitations is not tolled when a case has been voluntarily dismissed. Nee, e.g., In re IndyMac Mortg.-Backed Sec. Litig.,
However, the American Pipe exception does not apply here. As an initial matter, such an exception would be contrary to the purpose of M.C.R. 3.501(F): “The manifest purpose of this provision is to avoid 'the situation in which each class member must initiate his or her own individual lawsuit to preserve a cause of action. Thus, class members must be allowed to rely upon the ‘assertion’ of a class action without having to independently determine that the person asserting it has a right to do so.” Cowles,
Accepting that Grenke may toll Plaintiffs claims, the Court must calculate the precise number of days tolled. Grenke. was filed on September 24, 2012, Grenke, EOF No. 1, and a motion to certify a class was filed the same day, id. at EOF No, 2. The Grenke plaintiff withdrew without prejudice his motion for class certification on August 20, 2013. Id. at EOF No. 39. This is the date that Judge Cott used to calculate tolling. Edwards, ECF No. 77 at 9. Grenke was voluntarily dismissed with prejudice on February 23, 2015. Grenke, ECF No. 95. The Court concludes that, under M.C.R. 3.501(F), Plaintiff is .entitled to tolling for the entire length of Grenke litigation, not only until August 20, 2013. First, M.C.R. 3.501(F)(2) does not contemplate withdrawal without prejudice as one of the five conditions that recommences the running of the statute of limitations. The withdrawal without prejudice of the class certification motion in 2013 was not, therefore, a failure to move for class certification or a denial of certification that would otherwise terminate tolling under M.C.R. 3.501(F)(2)(a) or (c). Moreover, as Plaintiff explains:
Prior to the United States Supreme Court’s decision in Campbell-[Ewald] Emald Co. v. Gomez [— U.S. -],136 S.Ct. 663 [193 L.Ed.2d 571 ] (2016), plaintiffs would often file ‘placeholder’ motions for class certification with their complaints, to protect against any attempt by defendants to ‘pick-off the named plaintiffs individual claims by making a Fed. R. Civ. P. 68 offer of judgment above what the individual plaintiff could recover in the lawsuit. After discovery, [plaintiffs would then file bona .fide motions for class certification. That is exactly what happened in Grenke.
Pl. Opp. 47 (citation omitted). As is clear from the Grenke docket, the court set deadlines for class certification motions that extended well into 2015. See Grenke, ECF Nos. 47, 48, 52.
Plaintiffs claims, therefore, were tolled by Grenke from September 24, 2012, to February 23,2015—for 883 days.
Boelter was- filed on May 21, 2015. The Court rejects Defendant’s argument that Boelter should be excluded under M.C.R. 3.501(F) for the reasons already explained and agrees, therefore, with Judge Cott that Plaintiffs claims were tolled from May 21, 2015, until November 24, 2015, when Plaintiff filed her action in this case, Accordingly, Plaintiffs claims were tolled for 883 days before the filing of Boelter, or December 20, 2012.. Taking into account the three-year statute of limitations, any disclosure by Defendant that occurred after December 20, 2009 are actionable. Defendant’s motion for summary judgment based on the three-year statute of limitations is, therefore, DENIED.
B. Scope of the VRPA
Defendant raises three statutory interpretation arguments as to why its transmissions of Plaintiffs identifying information are not actionable under the VRPA: first, Defendant did not transmit records “concerning the purchase” of Plaintiffs magazine subscriptions; second, Defendant’s confidential transmissions were not “disclosures”; and third, Defendant’s transmissions were to its employees or agents ■ and' therefore exempt. The- Court addresses these arguments in turn and applies the Court’s conclusions to the disclosures discussed in Plaintiffs motion for summary judgment in section IV, infra.
The VRPA prohibits disclosure of “a record or information concerning the purchase ... [of written materials] by a customer that,indicates the identity of the customer,” VRPA § 2 (emphasis added), and defines “customer” as “a person who purchases .,. written material,” id. § 2(1 )(a). The parties dispute whether the “record or information” disclosed has to directly relate, to the purchase of Defendant’s magazines, such as a receipt or billing record, as opposed to merely being related to a person’s subscription.
Defendant argues that for the VRPA to prohibit disclosure of a record, that record or information must “identify Plaintiff as the purchaser of any of her magazine subscriptions.” Def. Mem. 27. To justify its interpretation, Defendant draws a comparison between’ the Michigan law and its federal analogue, the Video and Library Privacy Protection Act, which defines “consumer” more broadly as “any renter, purchaser, or subscriber.” 18 U.S.C, § 2710(a)(1) (emphasis added). Defendant reasons that the Michigan legislature, by defining “customer” more narrowly as a person “who purchases,” made a deliberate choice to exclude from the statute those records that merely disclose subscriber information. Def. Br. 29 <& n.14. Also in contrast to the Michigan VRPA, the federal law prohibits a provider from “knowingly disclosing], to any person, personally identifiable information concerning any consumer of such provider.” j.8 U.S.'C. §. 2710(b)(1). Defendant posits, therefore, that because it did not disclose Plaintiff’s identity as the purchaser of her subscriptions, those disclosures are not actionable.
Plaintiff, in response, argues that the use of the word “concerning” is intended to prohibit-a broad-range of disclosures “relating to; regarding; [or] about”-Plaintiffs magazine purchase. PL Opp. 12-13 .(quoting Bowman v. Greene, No. 308282,
The Court agrees with Defendant that “purchaser” is not synonymous with “subscriber,” and agrees with Plaintiff that disclosures “concerning the purchase” should be construed broadly. Thus, a disclosure that includes information solely connected to a gift or free subscription would not be actionable, but a disclosure that concerns, in broad terms, the purchase of that subscription would be actionable. ’
In analyzing the VRPA, the Michigan Supreme Court relied on the dictionary definition of “rent” to determine that “the word ‘rent’ contemplates some form of payment,” arid that a plaintiff under the VRPA who received a sound recording for free could not have a cause of action under the VRPA. Deacon v. Pandora Media, Inc.,
Thus, disclosure of a. record that shows a customer’s name, address, magazine title, and some additional information related to
ii.. “Disclose”
Defendant argues that the transmissions of Plaintiffs data that occurred were not “disclosures” under the VRPA because they were not made public. Defendant cites dictionaries, treatises, and case-law from within and outside Michigan to argue that “ ‘disclosure’ is synonymous with ‘publicity.’ ” Def. Mem. 31.
The Court disagrees. By Defendant’s own dictionary definition, “disclose” has the meaning “to make known or public”— suggesting that something, could be disclosed by being made known without being made public. Def. Mem. 30 (emphasis added) (quoting Webster’s Ninth New Collegiate Dictionary (1986)). As The Michigan Court of Appeals has noted, albeit in a different context: “The Legislature’s use of thé broad term ‘disclose’ precludes a cleric from revealing the covered statements to anyone, not simply before a court of law.” People v. Bragg,
Even assuming that Defendant is correct that “disclose” generally requires publicity, Defendant’s proposed interpretation of the VRPA is contrary to thé clear text of the statute. “Courts must give ef-feet to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute sur-plusage or nugatory.”. State Farm Fire & Cas. Co. v. Old Republic Ins. Co.,
Accordingly, the Court concludes that a disclosure need not be public to be actionable under the VRPA.
iii. “Employee or Agent” Exception
Finally, Defendant contends that the VRPA has an implicit exception for disclosures made to employees or agents. The Court agrees.
The statute prohibits “a person, or an employee or agent of the person” from disclosing a customer’s personal information, VRPA § 2; the prohibition against disclosure by an employee or agent would be unnecessary if the disclosure to an employee or agent would itself be actionable. See State Farm Fire & Cas. Co.,
The nature and scope of an agency relationship is generally a question of fact. If a written agreement defines the scope of an agent-principal relationship, however, a Court must determine the nature of the relationship..., [T]his Court must take Plaintiffs’ allegations regarding the relationship between Defendant and its “unrelated” vendors as true. Whether these third-party vendors are agents within the VRPA’s statutory definition, therefore, is best left for discovery.
Cain v. Redbox Automated Retail, LLC,
The parties further dispute the scope of this exception. The VRPA defines “employee” as “a person who works for an employer in exchange for wages or other remuneration,” and defines “employer” as “a person who has 1 or more employees.” VRPA § 1(b), (c). Defendant suggests that this definition has a wide scope, permitting disclosure to any third party that received remuneration for services they performed for Defendant. See Def. Reply 38. Plaintiff urges the Court to apply the “economic reality test,” which “looks to the totality of the circumstances surrounding the work performed.” Chilingirian v. City of Fraser,
As the Michigan Court of Appeals has stated, “when interpreting the terms ‘employ,’ ‘employer,’ or ‘employee’ in different statutory and factual contexts, the existence of an employment relationship is typically determined by examining a number of factors.... The economic reality test is the most common tool for discerning whether an employee-employer relationship exists.” Buckley v. Prof'l Plaza Clinic Corp.,
Michigan courts have articulated a number of factors to consider under the economic reality test. In Chilingirian I, the Michigan Court of Appeals considered: “(1) control of a worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal.”
Finally, although the VRPA also mentions “agentfsj,” it does not define the term. Plaintiff asks the Court to adopt the “control test,” which examines “whether the principal has a right to control the actions of the agent.” Hart v. Comerica Bank,
In order to determine what the Michigan legislature meant by “agent,” the Court first looks to dictionaries of the same vintage as the VRPA. See Deacon,
The [Michigan Civil Rights Act] does not define the term “agent,” so we may turn to- a dictionary for guidance , on its plain and ordinary meaning. An agent is “a person or business authorized to act on another’s behalf’ and “a person or thing that acts or has the power to act.” Random, House Webster’s College Dictionary (1997). And, if “agent” is considered a legal term, its meaning is the same: “[o]ne who is authorized to act for or in place of another.” Black’s Law Dictionary (7th ed). These definitions are consistent with general agency principles, Stephenson v. Golden (On Rehearing),279 Mich. 710 , 734-735,276 N.W. 849 (1937), and the fact that “most employers' are corporate entities that cannot function without delegating supervisor power.” Champion [v. Nationwide Security, Inc.,450 Mich. 702 ,545 N.W.2d 596 (Mich. 1996)10 ].
Elezovic v. Bennett,
In determining whether a third party is an agent, a court considers the contract between the parties as one factor. See Fed. Ins. Co. v. Detroit Med. Ctr., No. 08-13322,
Defendant argues that each of the disclosures it made were to third parties that “would be Hearst’s agents, not for all purposes ... but only regarding the receipt and handling of Plaintiffs” personal information. Def. Opp. 40 (citing Midwest Healthplan, Inc. v. Nat’l Med. Health Card Sys., Inc.,
Accordingly, the Court concludes that the VRPA contains an exception for disclosures made to bona fide agents or employees, and construes those terms as described above.
C. Unconstitutionally Vague
Defendant next argues that the VRPA, if construed as Plaintiff proposes, is unconstitutionally vague under the due process of clause of the Fourteenth Amendment. Because' the Court agrees with Defendant on its interpretation of “purchase” information and the employee/agent exception, see supra, the Court need only address Defendant’s argument that construing the VRPA to prohibit, disclosures “to any. person,” and not merely public disclosures, is unconstitutionally vague.
“A law is void for vagueness if it either (1) ‘fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or (2) lacks ‘explicit standards for those who apply [it].’” Expressions Hair Design v. Schneiderman,
The VRPA, construed to prohibit nonpublic disclosures, does not fail to communicate the conduct it prohibits, nor does it lack explicit'standards'for those who apply it. As described above, the Court rejects Defendant’s argument that “disclose” has the common and ordinary meaning of “public disclosure.” See, e.g., Bragg,
Accordingly, Defendant’s motion for summary judgment based on the theory that the VRPA is unconstitutionally vague is DENIED.
D. First Amendment
Defendant' moves for summary judgment on the ground that the VRPA is unconstitutional because it suppresses protected First Amendment speech. The Court rejected the same argument in the 2016 Opinion. See Boelter,
First, in renewing its First Amendment argument on summary judgment, Defendant stresses “Plaintiffs extraordinary evidentiary burden” in defending the constitutionality of the VRPA. Def. Reply 17; see also Def. Mem. 46 (“Plaintiff bears the heavy burden of affirmatively demonstrating that application of the Michigan VRPA to this case will in fact advance the government’s stated interest. ,.. ”). Defendant misstates the law. On the contrary, “[u]nder a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment.” Sorrell,
Nevertheless, Defendant’s renewed attempt to invalidate the VRPA on First Amendment grounds also fails. Neither discovery nor Defendant’s additional briefing has changed the conclusions the
As to Michigan’s asserted government interest, Defendant argues—yet again— that the VRPA must be limited only to public disclosure and not to “transmissions between publishers and trusted business associates to whom they outsource operations and share information about subscribers on a strictly confidential basis.” Def. Mem.- 42. As discussed above,- the VRPA makes clear that disclosures to employees or agents is not prohibited, but that even a “confidential” disclosure to an unrelated third party may be actionable. See secs. III.B .ii-iii, supra. Defendant argues that this broader reading of the VRPA is not supported by a substantial government interest. Def. Mem. 42-45. However, as the Court held in the 2016 Opinion, the Michigan legislature’s, stated interest in protecting consumer privacy from nonconsensual disclosure to third parties—and particularly in this case, where Defendant traded and sold Plaintiffs personal information for its own gain—is a substantial government interest. See Boelter,
Defendant next argues that the application of the VRPA to it under the facts of this case does not “directly advance” the substantial state interest “to a material degree.” Under this prong, the statute “may not be sustained if it provides only ineffective or remote support for the government’s purpose.” 44 Liquormart, Inc. v. Rhode Island,
These facts do not suggest that the VRPA, as applied to Defendant in this case, does not directly and materially advance the privacy interest enshrined in the statute. As to Defendant’s first point, Plaintiff testified at her deposition that “what I read is really nobody’s- business” and that “nobody needs to know whát I read.” PI. Dep. 66:18-19, 67:9-10. Even though Plaintiffs name and address are
Defendant’s argument that the VRPA is underinclusive because it fails to “prohibit numerous means of publicly communicating that same'information,” such as third-party sellers, is ünpersuasive. Def. Reply 21. Judge Buchwald rejected this argument in Condé Nást: “Whatever nonretail sellers are, it is possible 'that the [VRPA] could have further advanced Michigan’s aims by reaching them, but ‘[a] State need not'address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.’ As it stands, the law restricts those most likely to .have protected information.”
Nothing uncovered, during discovery moves the Court from its prior position that the application of the VRPA to Defendant in this case directly advances Michigan’s interest in protecting the private reading material of its citizens .in a material way. See Boelter,
Finally, Defendant argues that the VRPA is not, as applied, narrowly drawn. Defendant posits that “as urged by Plaintiff, the VRPA would sweep so broadly that it would effectively ban—and criminalize—all outsourcing by publishers of any functions that involve access to basic subscriber information. This would include database hosting, analytics, the printing of magazine labels, and the delivery of addressed magazines.” Def. Mem. 49. As. discussed above, the Court construes the VRPA more narrowly:- disclosures, such as to printing and delivery providers, that do not concern the purchase of a subscription are not actionable under the VRPA, nor are disclosures to a person’s employees or agents. See secs. III.B.Í, iii, supra: cf. Def. Mem. 60 (comparing the VRPA to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) in that HIP-PA’s “Privacy Rule” allows personal medical information to be shared to certain relevant outside entities subject to confidentiality safeguards). The Court adheres to its prior holding that the VRPA is sufficiently tailored to advance Michigan’s substantial interest. See Boelter,
Accordingly, Defendant’s motion for summary judgment that the VRPA, as applied, violates the First Amendment is DENIED. '
E. Unjust Enrichment
Finally, Defendant renews its objections to .Plaintiff’s, unjust enrichment claim, arguing that the VRPA provides the exclusive remedy for Plaintiffs claim and that Plaintiff has failed to come forward with evidence that Defendant was unjustly enriched. In the 20Í6 Opinion, the Court held that the VRPA does not preclude
First, Defendant repeats its argument that the VRPA provides the sole remedy for Plaintiffs claims. This is directly contrary to Michigan law, as described in the 2016 Opinion. See id. at 464 (“Under Michigan law, ‘[w]hether or not a statutory scheme preempts the common law on a subject.is a matter of legislative intent.’. A statutory remedy will only exclude common law claims if it is granted pursuant to ‘comprehensive legislation [that] prescribes in detail a course of conduct to pursue and the. parties and things affected, and designates specific limitations and exceptions.’ Therefore, statutes only operate to exclude common law claims when they feature express language to that effect, or when they are part of a ‘comprehensive’ legislative scheme. The VRPA does not include express language limiting a plaintiffs other potential remedies and is not part of a comprehensive ' legislative scheme. Therefore, it does not preclude Plaintiffs’ unjust enrichment claim.” (internal citations omitted) (quoting Kraft v. Detroit Entm’t, L.L.C.,
Defendant contends that Plaintiff has failed to offer any evidence that she suffered an injury sufficient to state a cognizable, unjust enrichment claim. “To state a claim for unjust enrichment under Michigan law, the. plaintiff must establish “(1) the receipt of a benefit by the other party from the complaining party and (2) an inequity resulting to the complaining party because of the retention of the, benefit by the other party.” Boelter,
. Therefore, Defendant’s motion, for summary judgment on Plaintiffs unjust enrichment claim is DENIED.
IV. The Parties’ Cross-Motions for Summary Judgment on Actionable Disclosures
Having settled on what it means to “disclose” records “concerning the purchase” of a magazine subscription under the VRPA and what factors are considered in determining whether disclosures , to a third-party entity are actionable, see sec. III.B, supra, the Court now applies this law to Defendant’s disclosures to the six
Although Defendant does not contest that it transmitted certain information about Plaintiff to each entity, it argues that such transmissions do not create liability under the VRPA. As discussed below, the Court GRANTS Plaintiffs motion as to disclosures made to Experian and Company 3; GRANTS Defendant’s motion as to disclosures made to Acxiom, Company 1, and Company 2; and DENIES each parties’ motion as to Dunn Data.
For a transmission to be actionable, Plaintiff must prove: (1) Defendant engaged in the business of selling magazines at retail; (2) Plaintiff purchased the magazine from Defendant; (3) Defendant disclosed a record or information concerning Plaintiffs purchase of the magazine; and (4) the disclosed record or information indicated Plaintiffs identity. See Hon. William Murphy & John VandenHombergh, Mich. Non-Standard Jury Instr. Civil § 32:10 (Aug. 2016) (listing the elements of a VRPA violation). The parties do not dispute that Defendant engaged in the business of selling magazines at retail, PI. 56.1 ¶2, or that Plaintiff purchased at least some of her magazine subscriptions from Defendant, id. ¶¶ 169, 171, 173, 176, 178, 182, 183, 187, 191, 192. Even where a transmission is actionable, Defendant may nonetheless show that it is permissible under the employee or agent exception of the VRPA. See sec. III.B.ÍÜ, supra.
A. Acxiom
Acxiom has, since 2008, hosted, maintained, and operated Defendant’s marketing database in exchange for monthly service fees. Def. 56.1 ¶¶ 106-07, 115. The Court concludes that Acxiom is an agent of Defendant and, therefore, transmissions of Plaintiffs personal information to Acxiom is not actionable under the VRPA’s agent exception.
Defendant hired Acxiom to act on its behalf in performing essential information technology (“IT”) functions that would otherwise be handled by an in-house IT department. It is undisputed that Acxiom built and hosted the database for Defendant, id. ¶ 107, which was previously hosted by a Hearst-affiliated company, id. ¶ 108. Defendant owns or licenses all of the data hosted in Acxiom’s database. Id. ¶ 111. Acxiom receives and inputs information from Defendant, processes and organizes that data, provides analytical tools to access and use the information, and executes Defendant’s instructions with respect to certain external transmissions. Id. ¶¶ 114, 117. Acxiom has no authority to transmit Defendant’s data without Defendant’s permission, id. ¶ 119, nor can Acxiom use Defendant’s data for its own purposes, id. ¶ 121. Acxiom never shared Defendant’s subscriber data with any third party except as directed or permitted by Defendant. Id. ¶ 127. Acxiom is “the functional equivalent of [Defendant’s] IT department,” but is outsourced rather than in-house. Vanthournout Dep. 257:2-12.
Given the scope of this relationship, it is clear that Acxiom was Defendant’s agent. See Elezovic,
It is true, as Plaintiff argues, that Defendant’s contract with Aexiom disclaims an employee or agency relationship: “Aex-iom shall perform all Services hereunder as an independent contractor, and nothing contained herein shall be deemed to create any employment, association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties hereto .... ” Márchese Decl. 1 Ex. 10, ¶ 13. This, as discussed above, is not dispositive. See Stephenson,
Defendant’s motion for summary judgment regarding Aexiom is, therefore, GRANTED and Plaintiffs motion is DENIED.
B. Experian
Defendant hired Experian to append demographic and other data onto records in its customer marketing database. See PI. 56.1 ¶¶82, 87; Def. 56.1 ¶ 135. In 2011, 2012, 2013, and 2014, Defendant directed Aexiom to provide customer data, including Plaintiffs data, to Experian. Pl. 56.1 ¶¶ 91-94; see Murphy Dep. 245:11-25 (Defendant’s representative testifying that Defendant transmitted Plaintiffs personal information to Experi-an). On an annual basis, for both active and expired subscribers, Defendant transmitted the name, address, account number, code indicating the title of a magazine, and order date. Def. Suppl. 56.1 ¶49; see Márchese Decl. 1 Ex. 15 (“Experian Refresh-Yearly” tab). The Court concludes that these disclosures are actionable under the VRPA.
Defendant argues that these disclosures did not “coneern[ ] the purchase” of Plaintiffs magazine subscription and that Expe-rian was Defendant’s agent or employee. The Court disagrees. As discussed above, see sec. III.B.Í, swpra, a record “concerning the purchase” need only relate to or have some bearing on that customer’s purchase. See Bowman,
Defendant also argues that Experian is its employee or agent. The Court is not persuaded. Although it is undisputed that Defendant paid Experian to provide data append services, Def. 56.1 ¶¶ 133-136, 146, this does not make Experian Defendant’s employee under the economic reality test: Defendant hired Experian to provide a service, in which Experian was afforded “the right to employ such methods and procedures in the performance of [the
Because Defendant disclosed ¡ a record concerning the purchase of a magazine subscription that indicates that customer’s—Plaintiffs—identity,’, Defendant has violated the VRPA. Plaintiffs motion for summary judgment as to these disclosures to Experian is GRANTED and Defendant’s motion is DENIED.
C. Company 1
Defendant does not dispute that it transmitted certain subscriber data—in-eluding name, address, and a three-character code identifying the magazine title—to Company 1 in 2014 and 2015 and that Plaintiffs status as an expired subscriber to Good Housekeeping was eligible to be included. Pl. 56.1 ¶¶ 106-09. Defendant also was required to, contribute its “customer file at the beginning of' its relationship with Company 1, which began in 2007, and then send, “complete previous-month customer history transaction information” on a monthly basis. Id. ¶102. Because, even viewing the facts in the light most favorable to her, Plaintiff has riot proven that a disclosure of Plaintiffs personal information actually , occurred within, the statute of limitations, Plaintiffs motion is denied and Defendant’s motion is granted.
The only evidence of an actual disclosure of Plaintiffs information is a “partial record for the James household,” Márchese Decl. 1 Ex. 28, that Company 1 produced; which includes, inter alia, Plaintiffs name, address, the title of Good Housekeeping', the code “DTP,” the text “Upd:06/2014,” the date “06/07/2014” in the title’ of the page, and dates including March 10, 2009 and March 10, 2010, Márchese Decl, 1 Ex. 27,
Defendant objects to Exhibit 27 as not being properly authenticated and including inadmissible hearsay. See, e.g., Pl. 56,1 ¶ 109; Def. Opp, 58 n.44. Defendant’s argument about improper authentication is not compelling, as Defendant does not challenge the authenticity of the document, but orily its admissibility. See Long v. New York City, No. 14 Civ. 9908,
Even assuming that Exhibit 27 were admissible, summary judgment could not be granted to Plaintiff. First, Plaintiffs account of Defendant’s disclosures to Company 1 are contrary to the evidence. Plaintiff consistently argues that “Plaintiffs [personal information] was transmitted to [Company 1] 50 times, once per month, from January 2011 through March 2015.” PI. Br. 12; see also PI. Reply 7 (“[Company 1:] 3rd Monday of each month from Jan. 2011 through Mar. 2015”). This date range is not supported by any of the evidence cited by Plaintiff. See PI. 56.1 ¶ 108 (citing Márchese Decl. 1 Ex. 15; Márchese Decl. 1 Ex. 25 (e-mail dated March 31, 2015, stating “Jim to submit change to requests to Acxiom to remove Michigan names from coop feeds for .... [Company 1]”); Murphy Dep. 360:6-16 (describing data transfers to Company 1 in the abstract)), On the other hand, Defendant provides testimony that by 2011, it was “no longer participating in the [Company 1 data c]o-op.” Def. Suppl. 56.1 ¶ 37 (citing Findikyan Deck 2 Ex. WW ¶8). Although Plaintiff denies Defendant’s statement, she does not, as required by Local Rule 56.1, “specifically controvert[ ]” Defendant’s statement with a “citation to evidence.” See id. (Plaintiff responding only that the .contract between Hearst and Company 1 contained a renewal clause and that there “is no evidence that Hearst or [Company 1] terminated the contract”). Although it also appears that Defendant resumed limited participation in the data cooperative in 2012, see. Findikyan Deck 1 Ex. QQ; Findikyan Deck 2 Ex. WW ¶ 8, Plaintiff did not subscribe to any of .the magazine titles involved in the renewed relationship, Def. Suppl. 56.1 ¶ 39. There is no other evidence of any agreement after 2012 that may have authorized transmission of Plaintiffs-personal information.
The Court recognizes that there are inconsistencies in the record. For example, Defendant admits that “Plaintiffs status as an expired subscriber to Good Housekeeping was eligible to be included in scheduled transmissions to [Company 1] from June 2014 to March 2015.” Pl. 56.1 ¶ 108. Having reviewed the voluminous record, however, the Court finds no evidence that a transmission of Plaintiffs personal information did, indeed, occur. In addition, under its 2007 agreement with Company 1, Defendant was obligated to “contribute [its] customer file at the beginning of this relationship and send[ ] complete previous-month custoinér history transaction information ... on a monthly basis.” Pl. 56.1 ¶ 102; see Findikyan Deck 1 Ex. PP ¶ B(l). Presumably, when Plaintiff subscribed to Good Housekeeping in March 2009, Def. 56.1 ¶48 (undisputed fact that Plaintiff was an active subscriber from April 2009 to March 2010), Defendant transmitted that information to Company 1
The Court is frustrated by the parties’ failure to provide a clearer record on summary judgment. Because the evidence does not show that Defendant disclosed Plaintiffs personal information to Company 1 within the statute of limitations, Defendant’s motion is GRANTED and Plaintiffs motion is DENIED. However, if Plaintiff believes that evidence of an actionable disclosure to Company 1 is contained in the record and the Court has overlooked it, Plaintiff is invited to file a motion for reconsideration on that ground.
D. Company 2
Company 2 produced a spreadsheet that contained some of the information it possessed about Plaintiff, which Plaintiff relies upon in asserting that Defendant disclosed Plaintiffs personal information to Company 2. See Márchese Decl. 1 Ex. 33; Pl. Mem. 16. These records show that Plaintiff purchased a subscription to Women’s Day for $9.99 on January 2, 2007, and that Company 2’s records were updated on April 7, 2011. Márchese Decl. 1 Ex. 33 (indicating “latest_pur-chase_gross_amf’ is “9.99”; the “lat-est_purchase_date” is “1/2/2007”; the “update-date” is 4/7/2011 5:33”; and the “user_data 1” is “15,” which the spreadsheet indicates corresponds to Women’s Day).
It is undisputed that Women’s Day magazine was, until June 2011, published by Hachette Filipacchi Media U.S., Inc. (“Ha-chette”). Def. 56.1 ¶¶2-4. Defendant acquired all outstanding stock of Hachette in May 31, 2011. Id. The “update date” is April 7, 2011—over a month before Defendant acquired Women’s Day. Moreover, the content and codes contained in Company 2’s spreadsheet do not match Defendant’s customer database. Findikyan Deck 3 Ex. GGG ¶¶ 8-12. Thus, the undisputed evidence indicates that Defendant did not provide this information about Plaintiff to Company 2.
Plaintiff makes two arguments to the contrary. First, she relies on the deposition testimony from the representative of Company 2, who testified that Hearst provided this subscription information. See Company 2 Dep. 122:16-123:14. However, the Court need not “credit testimony on summary judgment when it is so clearly contradicted by other evidence that no reasonable jury could believe it.” Fendi Adele, S.R.L. v. Ashley Reed Trading, Inc.,
Second, Plaintiff argues that the three addenda to the contract between Defendant and Company 2, each entered into in 2013, provided for quarterly transmissions of Women’s Day, Good Housekeeping, Oprah, and Redbook subscribers, including expired subscribers such as Plaintiff. Pl. Reply 8 (citing Findikyan Decl. 2 Exs. CCC, DDD, EEE). However, the fact that Defendant agreed to transmit some subscriber information is not evidence that it did, in fact, transmit Plaintiffs subscriber information. “[W]here the non-moving party has the ultimate burden of proof, ‘the movant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the non-moving
Defendant’s motion for summary judgment as to Company 2 is GRANTED and Plaintiffs motion is DENIED.
E. Dunn Data
From 2008 to 2013, Defendant sent active and former subscriber information to Dunn Data in exchange for money and a discount to use Dunn Data’s database to identify new subscribers. PI. 56.1 ¶¶ 72, 73. Defendant does not dispute that Plaintiff, as an expired Good Housekeeping magazine subscriber, was “eligible” to have her records transmitted to Dunn Data in three transmissions scheduled between June 2011 and March 2012. Id. ¶ 75; Murphy Dep. 366:19-367:18. Because there is a dispute about when Plaintiffs information was disclosed to Dunn Data, the Court denies each party’s motion.
Dunn Data’s representative testified that it received, among other things, Plaintiffs name, address, and magazine titles from Defendant, Dunn Dep. 130:7-17, and that Defendant provided data pursuant to the contract nearly every quarter, id. 55:24-56:2; see also id. 56:5-10 (“We might have skipped a couple. Sometimes it’s not worth doing that frequently. So they might have. They certainly, you know, didn’t violate my contract. But we may not have requested it at certain times.”). Although Plaintiff has established that her data was eligible to be transmitted, Plaintiff has not provided evidence that these scheduled transmissions occurred or that Plaintiffs personal information was in fact ever transferred. Nor has Plaintiff proven that Dunn Data had information about Plaintiffs subscription purchases that were the result of transmissions that took place after December 20, 2009 and, therefore, within the statute of limitations. See sec. III.A, supra. Therefore, drawing reasonable inferences in Defendant’s favor, the Court cannot grant Plaintiffs motion for summary judgment.
However, the Court is skeptical of Defendant’s position that these transmissions did not occur. Drawing reasonable factual inferences in Plaintiffs favor, Defendant’s motion also must be denied: a reasonable jury could draw the'inference that these transmissions occurred, despite the lack of direct evidence. And assuming that any of the three scheduled transmissions occurred between June 2011 and March 2012, Plaintiff could make out a cause of action.' These transmissions contained a wealth of information concerning Plaintiffs purchase of Defendant’s magazines: in addition to Plaintiffs name, address, and a name of a magazine subscribed to, Defendant also transmitted, inter aim, whether the order was a gift, the paid status, the order date, and amount paid, Márchese Decl. 1 Ex. 15 (“Dunn Data” tab, rows 33 to 40); Márchese Decl. 1 Ex. 41—in other words, the type of data “concerning” a “purchase” that is necessary to make out a VRPA claim. In addition, there is no indication that Dunn Data was Defendant’s agent or employee; indeed, Dunn Data paid Defendant for its customer data, PI.
Because the evidence does not conclusively prove an actionable transmission and because a reasonable jury could draw a conclusion in favor of either party, Plaintiffs motion for summary judgment as to Dunn Data is DENIED and Defendant’s motion is DENIED.
F. Company 3
Defendant does not dispute that on December 1, 2014, January 5, 2015, February 2, 2015, and March 4, 2015, it directed Acxiom to transmit Plaintiffs name, address, and status as an expired subscriber of Good Housekeeping, Oprah, Redbook, and Women’s Day to Company 3. Pl. 56.1 ¶ 48. Exhibit 19 is a spreadsheet created by Company 3 from the raw data provided by Acxiom on those dates. Company 3 Deck ¶ 7; Each of the four transmissions included Plaintiffs name and address and an “expired” status for four magazines: a Good Housekeeping subscription that expired in the year “11”; an Oprah subscription that expired in “05”; a Redbook subscription that expired in “07”; and a Women’s Day subscription that expired in “07.” Márchese Decl. 1 Ex. 19. Each subscription also includes a “DTP-FLAG” as “Y.” Id. The field “DTP-FLAG” stands for “Direct to Publisher.” PI. 56.1 ¶ 52; Company 3 Deck 7-8. The DTP flag describes the primary source code for the subscription purchase. See Murphy Dep. 309:8-311:15.
The Court concludes that the disclosures of the Good Housekeeping and Women’s Day subscriptions are not actionable, but that the Oprah and Redbook subscriptions are. First, it is undisputed that Defendant did not own Women’s Day in 2007, Def. 56.1 ¶¶2-4; Def, Suppl. 56.1 ¶¶ -22, so Plaintiff was not Defendant’s “customer.” under the VRPA as to her Women’s Day subscription. Cf. Coulter-Owens,
However, it is undisputed that Plaintiff purchased a subscription to Oprah in May 2004 (presumably expiring in 2005) directly from Defendant, PI. 56.1 ¶ 82, and purchased a subscription to Redbook in October 2006 (presumably expiring in 2007) directly from Defendant, id. ¶ 187. These two purchases correspond precisely to the data trahsmissions made by Defendant in 2014 and 2015 described above. Because these records include Plaintiffs name and address, there is no dispute that they “indicate the identity of the customer.”
Having concluded that Defendant engaged in the business of selling magazines at retail, that, Plaintiff purchased magazines from Defendant,, and that Defendant transmitted Plaintiffs identity to a third party, only two questions remain: whether the records were “concerning the purchase” of the magazines and whether Com
- First, for the reasons more thoroughly explained above, see sec. III.B.i, supra, the Court concludes that these disclosures “concern” Plaintiffs subscriptions. Not only did Defendant disclose the title of a magazine subscription that Plaintiff purchased, it also noted that the order was “Direct to Publisher” and included information about whether Plaintiff was a “Multiple Buyer.” See Márchese Décl. 1 Ex. 19; Márchese Decl. 1 Ex. 16 at Ex. A. These identifiers are sufficient to relate to or regard Plaintiffs purchase of a' subscription. See Bowman,
Further, Company 3 is neither an employee nor an agent of Defendant. Defendant concedes that Company 3 is not Plaintiffs employee. See Def. Mem. 33-34 (arguing only that Acxiom, Experian, and Company 1 were “employees”). In exchange for providing subscribers’ information, Defendant was paid a licensing fee. Pl. 56.1 ¶¶ 38, 44, 45. Although just a factor, the contract between Defendant and Company 3 explicitly disclaimed that an agency relationship was formed. Id. ¶ 41. And unlike Acxiom, Company 3 was not empowered or authorized to act on Defendant’s behalf in any manner. See Elezovic,
Accordingly, Plaintiffs motion for summary judgment as to the disclosures to Company 3 of Plaintiffs subscriptions to Oprah and Redbook on December 1, 2014, January 5, 2015, February 2, 2015, and March 4, 2015 is GRANTED and Defendant’s motion is DENIED.
CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss is DENIED; Defendant’s motion for summary judgment is GRANTED as to the disclosures it made to Acxiom, Company 1, and Company 2; Plaintiffs motion for summary judgment is GRANTED as to Defendant’s disclosures to Experian and Company 3; and the balance of each party’s summary judgment motion.is DENIED, which leaves for trial Plaintiffs VRPA claim as to Defendant’s disclosure to Dunn Data and Plaintiffs unjust enrichment claim.
By September 22, 2017, the parties shall submit a joint letter to the Court and Judge Cott that addresses whether the parties believe a settlement conference might be productive at this time and that includes a proposed schedule, for going forward, including for Phase II discovery.
The Clerk of Court is directed to terminate the motions at ECF Nos, 150, 151, and 157 in 15 Civ. 3934 and ECF Nos. 132, 136, and 140 in 15 Civ. 9279.
SÓ ORDERED.
Notes
Editor’s Note: Redactions by court.
. After Edwards' complaint was consolidated with former plaintiff Suzanne Boelter, the Court so-ordered Boelter’s stipulation of dismissal of her claims with prejudice. ECF No. 125.
. The following facts are drawn from the parties' pleadings and submissions in these motions, including: the consolidated class action complaint, ECF No. 67 ("Compl.”); the parties’ memoranda of law, ECF No. 152 ("Def. Mem.”), ECF No. 158 ("PI. Mem.”), ECF No. 163 ("PI. Opp.”), ECF No. 177 (“Def. Opp.”), ECF No, 187 ("PI. Reply”); the parties' respective Rule 56.1 statements of undisputed fact and the responses thereto, ECF No. 173 ("Def. 56.1”), ECF No. 178 ("PL 56.1”), ECF No. 188 ("Def. Suppl. 56.1”); the declarations of Kristina E. Findikyan, ECF No. 154 ("Findikyan Deck 1”), ECF No. 179 ("Findikyan Deck 2”), ECF No. 180 ("Findikyan Deck 3”); the declaration of Plaintiff, ECF No. 161 ("Pi. Deck”); the declaration of Philip L. Fraietta, ECF No. 162 ("Fraietta Deck”); the declarations of Joseph I. Marchese, ECF No. 171 ("Márchese Deck 1”), ECF No. 165 ("Márchese Deck 2”), ECF No. 166 ("Márch-ese Deck 3”); and the exhibits attached to these declarations. Facts in dispute are so noted. Citations to a paragraph in a party’s Rule 56.1 statement also include the-opposing party's response. Unless otherwise noted, all docket citations refer to Boelter, 15 Civ. 3934, which is the lead case in this consolidated action. The parties are reminded to file documents on the Boelter docket and to cite Boelter docket numbers. See ECF No. 132; ECF No. 131, at 1 n.1; ECF No. 128, at 1 n.1.
. Plaintiff also argues that Defendant published Plaintiffs identifying information through a website operated by Defendant, bu-ysub.com. PI. Mem. 24-25; see generally Fraietta Decl. & Exs. A-B. In a declaration, Plaintiff’s counsel explains that on October 6, 2016, h.e.used Plaintiff’s name and street address to log into the "Good Housekeeping Magazine Customer Service” page that is hosted on buysub.com and accessible through
. Plaintiff did not subscribe to any of the magazine titles listed in the agreement governing Defendant’s participation in the data exchange with Company 1 in 2012. Def. Suppl. 56.1 ¶ 39.
. Although Plaintiff provides three citations for her claim, none indicate transmissions on the dates stated. See Pi. 56.1 ¶ 108 (citing Márchese Decl. 1 Ex. 15; Márchese Decl, 1 Ex. 25 (e-mail dated March 31, 2015, stating “Jim to submit change to requests to Acxiom to remove Michigan names from coop feeds for ... [Company 1]”); Murphy Dep. 360:6-16 (describing data transfers to Company 1 in the abstract)).
. Defendant misstates the respective burdens in its 12(b)(1) motion, suggesting that an absence of evidence weighs in Defendant’s favor. Def. Mem. 21 (“Because Plaintiff bears the burden of proving her case, and because Phase I discovery has been completed, Hearst’s burden is met 'if [it] can point to an absence of evidence to support an essential element of [Plaintiff’s] claim.’ ” (quoting Saleem v. Corp. Transp. Grp.,
. Because the issue is not presented in this motion, the Court takes no position on whether a disclosure that includes only Plaintiffs name, address, and a name of a magazine would “concern the purchase” of that magazine subscription under the VRPA.
. Chilingirian I was remanded by the Michigan Supreme Court, which stated that the Michigan Court of Appeals had "fail[ed] to give any analysis to plaintiff's claim that definition could include him, even though he is an independent contractor.” Chilingirian v. City of Fraser,
. In a separate line of cases, Michigan courts have identified the following nonexhaustive list of considerations: (1) "what liability, if any, does the employer incur in the event of the termination of the relationship at will?"; (2) "is the work being performed an integral part of the employer's business which contributes to the accomplishment of a common objective?”; (3) "is the position or job of such a nature that the employee primarily depends upon the emolument for payment of his living expenses?"; (4) “does the employee furnish his own equipment and materials?”; (5) "does the individual seeking employment hold himself out to the public as one ready and able to perform tasks of a given nature?”; (6) is the work or the undertaking in question customarily performed by an individual as an independent contractor?”; (7) "control, although abandoned as an exclusive criterion upon which the relationship can be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees”; and (8) "weight should be given to those factors which will most favorably effectuate the objectives of the statute.” Coblentz,
. Champion was overruled on other . grounds. See Hamed v. Wayne County,
. Defendant’s motion for summary judgment argues that the VRPA fails under intermediate scrutiny, but suggests parenthetically that strict scrutiny is more appropriate following Sorrell v. IMS Health Inc.,
. Moreover, Plaintiff implicitly acknowledges that Aexiom acted as Defendant’s agent because the disclosures to the other five third parties were made by Aexiom on behalf of Defendant. See, e.g., PL 56.1 ¶ 86 ("Aexiom transmitted Hearst’s customer [personal information] to Experian at Hearst’s instruction .,.”); id. ¶ 106 ("Aexiom, on Hearst's behalf, automatically transmitted Hearst’s customer file ..,.”); id. ¶32 ("Aexiom also transmits, or extracts, Hearst’s customer data ... to [Company 3], Dunn Data, Experian, [Company 1], and [Company 2] at Hearst’s instruction.”).
. The Court takes judicial notice of Experi-an’s website. Cf. In re UBS Auction Rate Sec. Litig., No. 08 Civ. 2967,