By Gerald L. Maatman, Jr., Jennifer A. Riley, and Emilee N. Crowther
Duane Morris Takeaways: In Brown v. Learfield Communications, LLC, et al., No. 1:23-CV-00374, 2024 U.S. Dist. LEXIS 15587 (W.D. Tex. Jan. 29, 2024), Judge David A. Ezra of the U.S. District Court for the Western District of Texas granted Defendants Learfield Communications, LLC and Sidearm Sports, LLC’s Rule 12(b)(6) motion to dismiss Plaintiff’s Video Privacy Protection Act (VPPA) class claim. The Court held that Plaintiff failed to plead facts to support his claim under the VPPA because he did not allege that he was a subscriber to audio-visual goods or services themselves, just a newsletter that contained links to publicly-available content on The University of Texas’s website. Defendants in VPPA class actions can utilize this decision as a roadmap when preparing motions to dismiss.
Case Background
Defendants Learfield Communications, LLC and Sidearm Sports, LLC (collectively, “Defendants”) operated the University of Texas at Austin’s (“UT”) website (the “UT Website”). Id. at 2. The UT Website contains software that enables Facebook to track the activity of UT Website users on other websites. Id. Defendants invite UT Website visitors to subscribe to emailed newsletters. Id. at 3. The newsletters provide links to various videos, clips, and other content on the UT Website related to UT Athletics. Id. Plaintiff Adam Brown subscribes to UT’s emailed newsletter. Id.
In April 2023, Plaintiff filed a class action against Defendants UT, UT Athletics, Learfield, and Sidearm alleging that they violated the VPPA by purportedly exposing the subscribers’ personal identification information and gathering marketing data without consent. Id. at 4. In June 2023, UT and UT Athletics filed a motion to dismiss based on sovereign immunity. Id. at 2. The motion was granted in July. Id. In September, Defendants Learfield and Sidearm filed a motion to dismiss under 12(b)(1), 12(b)(6), and 12(b)(7). Id.
The Court’s Decision
The Court denied Defendants’ Rule 12(b)(1) and 12(b)(7) motions to dismiss. It held that neither Learfield or Sidearm was entitled to immunity as an “arm of the state,” and that neither UT or UT Athletics were indispensable parties to the lawsuit. Id. at 7-10.
The Court, however, granted Defendants’ Rule 12(b)(6) motion to dismiss on the basis that Plaintiff was not a “consumer” under the VPPA because he failed to allege a factual nexus between the subscription and Defendants’ allegedly actionable video content. Id. at 2, 19, 26.
To state a claim under the VPPA, the Court noted that a plaintiff must allege that a defendant “(1) is a video tape service provider; (2) who knowingly disclosed to any person; (3) personally identifiable information; (4) concerning any consumer.” Id. at 10-11; 18 U.S.C. 2710(b)(1). Under the VPPA, a “consumer” is “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1).
The Court reasoned that the VPPA “only applies to consumers (including subscribers) of audio video services” because, when reading the term “consumer” in the full context of the VPPA, “a reasonable reader would understand the definition of ‘consumer’ to apply to a renter, purchaser or subscriber of audio-visual goods or services, and not goods or services writ large.” Id. at * 19 (emphasis original) (quoting Carter v. Scripps Networks, LLC, 2023 WL 3061858, at *6 (S.D.N.Y. Apr. 24, 2023)).
The Court concluded that Plaintiff was not a “consumer” under the VPPA because (i) the newsletter did not contain videos, just links to videos on the UT Website; and (ii) the linked videos were available for any member of the public to see on the UT Website, not just those who subscribed to the newsletter. Id. at 26-28. Accordingly, the Court ruled that Plaintiff was not a subscriber to audio-visual goods or services, just a newsletter. Id. at 28-29. Ultimately, because Plaintiff failed to allege facts to support a claim under the VPPA, the Court granted Defendants 12(b)(6) motion to dismiss. Id. at 29.
Implications For Companies
The decision in Brown v. Learfield serves as a roadmap for defendants in VPPA class actions to utilize when preparing motions to dismiss. This case is also important as it adds the Western District of Texas to a growing number of federal courts that strictly construe the VPPA to audio-visual materials, not links to publically-available videos in newsletters. See, e.g., Carter v. Scripps Networks, LLC, No. 22-CV-2031, 2023 WL 3061858, at *6 (S.D.N.Y. Apr. 24, 2023); Jefferson v. Healthline Media, Inc., No. 3:22-CV-05059, 2023 WL 3668522, at *3 (N.D. Cal. May 24, 2023); Gardener v. MeTV, No. 22-CV-5963, 2023 WL 4365901, at *4 (N.D. Ill. July 6, 2023).