David Vance Gardener, Jeannetta McElroy, and Earl Hayes, individually and on behalf of all others similarly situated v. MeTV, a National Limited Partnership
No. 22 CV 5963
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
July 6, 2023
Judge Lindsay C. Jenkins
Case: 1:22-cv-05963 Document #: 38 Filed: 07/06/23 Page 1 of 12 PageID #:278
Plaintiffs David Vance Gardner, Jeannetta McElroy, and Early Hayes (“Plaintiffs“) have sued Defendant MeTV on behalf of themselves and a putative nationwide class, alleging that MeTV unlawfully disclosed their personal “video viewing” history and associated unique Facebook identification (“FID“) in violation of the Video Privacy Protection Act (“VPPA” or “Act“),
I. Background1
MeTV “is an American Broadcast television network” that owns and operates
As users of the social media platform Facebook, Plaintiffs allege that they are assigned a unique Facebook identification (“FID“), “a string of numbers unique to each Facebook profile that personally identifies the user.” [Id. ¶¶ 4, 46.] Plaintiffs allege that this unique identifier allows “anyone who possesses an FID . . . to quickly and easily locate, access, and view the corresponding Facebook profile, which contains personal information, often in largе quantities.” [Id. ¶ 47.]
Plaintiffs further allege that they are “MeTV subscriber[s]” by virtue of having MeTV accounts. [Id. ¶¶ 17-18, 24-25, 31-32.] Plaintiffs allege that they provided certain personally identifiable information (“PII“) when they signed up for a MeTV account, including “at least” their names and email addresses. [Id. ¶¶ 19, 26, 33.]
The complaint alleges that “MeTV collects and shares users’ personal information with Meta using a ‘Meta Pixel.‘” [Id. ¶ 3, 50-51.] Meta owns the social media platform Facebook. [Id. 1.] The Meta Pixel is “snippet of programming code that, once installed on a webpage, sends information to Meta . . . when a user views a prerecorded video on MeTV‘s website.” [Id. ¶¶ 3, 51.] Plaintiffs further allege that “[t]he [Meta] Pixel is an advertising tool that allows website owners to track visitor
On October 28, 2022, Plaintiffs filed the present suit against MeTV. [Dkt. No. 1.] Plaintiffs allege that MeTV violated VPPA by knowingly disclosing their PII to Meta without the statutorily required consent (Count One) and that MeTV was subsequently unjustly enriched by its unlawful disclosure (Count Two). [Id. ¶¶ 80-95.] Plaintiffs seek statutory damages and injunctive relief. [Id. at 15-16.]
II. Legal Standard
To survive a motion to dismiss for failure to state a claim,
III. Analysis
MeTV seeks to dismiss Plaintiffs’ complaint in its entirety but focuses its arguments primarily on Plaintiffs’ VPPA claim. See generally [Dkt. No. 16]. “Enacted in 1988 in response to the Washington City Paper‘s publication of then-Supreme Court nominee Robert Bork‘s video rental history,” the VPPA prohibits “video tape service provider[s],” like MeTV, from “disclos[ing], to any person, personally identifiable information concerning any consumer of such provider.” Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 621 (7th Cir. 2014) (citing
MeTV argues that the VPPA claim should be dismissed for three reasons: (1) Plaintiffs are not “consumers” under the Act, (2) Plaintiffs insufficiently plead that MeTV “knowingly disclose[d]” to Meta “specific video materials,” and (3) even if Plaintiffs’ allegations successfully plеd a VPPA claim, MeTV‘s conduct falls under the exception for its ordinary course of business.2 [Dkt. No. 16.]
As to the question of whether Plaintiffs are “consumers,” Plaintiffs concede that they do not qualify as “renters” or “purchasers” under the Act. [Dkt. No. 23 at 4.] Rather, Plaintiffs contend they are “subscribers,” an undefined term within the VPPA. [Id.] The absence of a definition for this term has sрurred voluminous briefing in this matter, [Dkt. Nos. 30, 32, 36–37], as well as a variety of recent opinions from other district courts. Compare, e.g., Carter v. Scripps Networks, LLC, 2023 WL 3061858, at *6-7 (S.D.N.Y. Apr. 24, 2023) (dismissing similar VPPA claim); and
MeTV argues that Plaintiffs are not “subscribers” because their relationship with MeTV is too insubstantial. [Dkt. No. 16 at 2.] MeTV notes that anyone can view videos on MeTV‘s website, without the need for a login, which is patently insufficient to be a “subscriber,” as Plaintiffs have not provided personal information in return for access to video сontent. [Id. at 5.] Plaintiffs argue they are subscribers under the Act because their creation of MeTV profiles reflects “an ongoing commitment or relationship with MeTV,” regardless of “whether non-subscribers can watch the same videos for free.” [Dkt. No. 23 at 5 (internal quotation marks omitted).]
Because the parties seek to define the term “subscriber” and it is undefined in the statute, this Court, as others have, must “ask what that term‘s ‘ordinary, contemporary, common meaning’ was when Congress enacted the statute.” Astellas US Holding, Inc. v. Fed. Ins. Co., 66 F.4th 1055, 1075 (7th Cir. 2023) (citing Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019)). When addressing questions of statutory interpretation, the Court begins with the text of the
The Court agrees with Plaintiffs that to be a “subscriber” under the Aсt, Plaintiffs need not pay for access to video content. [Dkt. No. 23 at 4.] Other circuit courts have similarly found that VPPA does not require payments. See Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1256 (11th Cir. 2015) (citation omitted) (noting “[a]lthough most definitions of ‘subscribe’ or ‘subscriber’ involve payment of some sort, not all do“); see also Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 487 (1st Cir. 2016) (“if the term ‘subscriber’ required some sort of monetary payment, it wоuld be rendered superfluous by the two terms preceding it“). As another district court deciding this same issue noted, “Congress could have easily specified that ‘consumer’ meant ‘any renter, purchaser, or paid subscriber,’ but chose not to qualify ‘subscriber’ in that fashion.” Jefferson, 2023 WL 3668522, at *3.
The Court does not agree, however, with Plaintiffs’ argument that the allegations that it opened an account separate and apart from viewing video content on MeTV‘s website is sufficient to render them “subscribers” under the Act. [Dkt. No.
The Carter plaintiffs are indistinguishable from the Plaintiffs here: both had subscriptions (newsletter or website) of a kind that were unconnected to their ability to access video content. Compare id. at *1 with [Dkt. No. 1 at ¶¶ 17–18, 24–25, 31–32]. Neither set of plaintiffs paid fоr this privilege, made any commitment to do so, otherwise exchanged anything of value to do so, or received special access to certain content. Like the plaintiffs in Carter, Plaintiffs here were subscribers to a website, “not subscribers to audio visual materials,” as they “were free to watch or not watch [MeTV‘s] videos without аny type of obligation, no different than any of the other 9.9 million monthly visitors to the site.” Carter, 2023 WL 3061858, at *6.
Other cases similarly lend credence to the logic in Carter and Jefferson. See Yershov, 820 F.3d at 489 (noting that to use the app in question to stream video content, the plaintiff had to provide personal information, noting that “access was not free of a commitment to provide consideration in the form of that information“); Perry v. Cable News Network, Inc., 854 F.3d 1336, 1343 (11th Cir. 2017) (nоting that because the plaintiff “admitted before the district court that he was never required to register for the CNN App” to access video content, he “did not actively provide his
Even if the Court were to employ the Eleventh Circuit‘s multi-factor test from Ellis, Plaintiffs’ allegations would still be insufficient. Ellis v. Cartoon Network, Incorporated held that “‘subscription’ involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.” 803 F.3d 1251, 1256 (11th Cir. 2015). Put another way, “[s]ubscriptions involve some or [most] of the following [factors]: payment, registration, commitment, delivery, [expressed association,] and/or access to restricted content.” Id. (citation omitted). As MeTV points out, only one factor is met here: registration. [Dkt. No. 27 at 2.] While the Seventh Circuit has not weighed in on this issue, this one factor alone seems insufficient.
Because the Court finds dispositive MeTV‘s argument that Plaintiffs are not consumers under the Act, it does not address the remainder of MeTV‘s arguments in
IV. Conclusion
For the reasons stated below, MeTV‘s motion is granted. [Dkt. No. 15.] Plaintiffs are ordinarily given at least one opportunity to amend their complaint as it is not ”certain from the face of the complaint that any amendment would be futile or otherwise unwarranted.” See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 520 (7th Cir. 2015) (emphasis in original). Plaintiffs may file an amended complaint on or before July 27, 2023, if thеy can do so consistent with this Order.
Enter: 22-cv-5963
Date: July 6, 2023
Lindsay C. Jenkins
United States District Judge