{"id":795,"date":"2023-09-06T20:34:42","date_gmt":"2023-09-07T00:34:42","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=795"},"modified":"2023-09-06T20:34:42","modified_gmt":"2023-09-07T00:34:42","slug":"court-dismisses-vppa-class-claim-alleging-that-general-mills-shared-consumer-data-with-facebook-and-google","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/09\/06\/court-dismisses-vppa-class-claim-alleging-that-general-mills-shared-consumer-data-with-facebook-and-google\/","title":{"rendered":"Court Dismisses VPPA Class Claim Alleging That General Mills Shared Consumer Data With Facebook And Google"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr. and Tyler Zmick<\/strong><\/p>\n

Duane Morris Takeaways:\u00a0\u00a0<\/em><\/strong>In Carroll v. General Mills, Inc., No. 23-CV-1746 (C.D. Cal. Sept. 1, 2023), Judge Dale Fischer of the U.S. District Court for the Central District of California issued a decision\u00a0<\/a><\/em>dismissing (for a second time) a class claim brought against General Mills under the Video Privacy Protection Act (\u201cVPPA\u201d).\u00a0 In its decision, the Court ruled that General Mills \u2013 a company that manufactures and sells cereals and other food products \u2013 did not qualify as a \u201cvideo tape service provider\u201d under the VPPA, and that even if it did, Plaintiffs\u2019 claim would still fail because they did not show they were \u201cconsumers\u201d covered by the statute\u2019s privacy protections.\u00a0 Carroll v. General Mills is the latest decision involving the VPPA \u2013 a long dormant statute that class action plaintiffs have recently turned to in attempting to seek redress for alleged privacy violations.<\/em><\/p>\n

Case Background<\/strong><\/p>\n

Plaintiffs Keith Carroll and Rebeka Rodriguez alleged that they watched videos on General Mills\u2019 website and that General Mills subsequently disclosed their \u201cvideo viewing behavior\u201d to Facebook and Google.\u00a0 Specifically, Carroll claimed that General Mills sent Facebook the video he watched online and his identifying information in connection with General Mills\u2019 use of a Facebook advertising feature.\u00a0 Similarly, Rodriguez claimed that General Mills disclosed her \u201cvideo viewing behavior\u201d and other website analytics data to Google through General Mills\u2019 use of the Google Marketing Platform.<\/p>\n

Based on these allegations, Plaintiffs filed a class action that alleged General Mills violated the Video Privacy Protection Act (\u201cVPPA\u201d) by knowingly disclosing their personally identifiable information (\u201cPII\u201d) to Facebook and Google.\u00a0 See <\/em>18 U.S.C. \u00a7 2710(b)(1).<\/p>\n

The District Court\u2019s Decision<\/strong><\/p>\n

The Court granted General Mills\u2019 motion to dismiss Plaintiffs\u2019 VPPA claim. It held that Plaintiffs failed to satisfy the first two prongs of the four-step pleading test applicable to VPPA claims.<\/p>\n

In analyzing the allegations, the Court explained that to state a VPPA claim, a plaintiff must allege that: (1) a defendant is a \u201cvideo tape service provider\u201d; (2) the defendant disclosed PII concerning a consumer to another person; (3) the disclosure was made knowingly; and (4) the disclosure was not authorized by the \u201csafe harbor\u201d provision set forth in 18 U.S.C. \u00a7 2710(b)(2).<\/p>\n

Like the claim asserted in the previous version of their complaint, the Court determined that Plaintiffs\u2019 VPPA claim failed at step (1) because Plaintiffs did not adequately allege that General Mills is a \u201cvideo tape service provider,\u201d and that even if the Court were to proceed to step (2), Plaintiffs would also fail at that step based on their inability to show that they qualify as \u201cconsumers\u201d under the statute.<\/p>\n

\u201cVideo Tape Service Provider\u201d<\/u><\/p>\n

Regarding step (1), the VPPA defines a \u201cvideo tape service provider\u201d as \u201cany person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.\u201d\u00a0 18 U.S.C. \u00a7 2710(a)(4).\u00a0 Importantly, the Court noted that the statute does not apply to every company that \u201cdelivers audio visual materials ancillary to its business\u201d but only to companies \u201c<\/strong>specifically in the business of<\/em><\/strong> providing audio visual materials.\u201d\u00a0 See<\/em> Order at 6.<\/p>\n

Based on the allegations at hand, the Court held that Plaintiffs failed to allege that General Mills \u2013 who manufactures and sells cereals, yogurts, dog food, and other products \u2013 is \u201cengaged in the business <\/em><\/strong>of delivering, selling, or renting audiovisual material.\u201d\u00a0 Id.<\/em>\u00a0 The Court rejected Plaintiffs\u2019 attempt to satisfy step (1) by adding allegations in their amended complaint regarding General Mills posting on its website links to professionally made videos.\u00a0 In the Court\u2019s words, these \u201callegations do no more than show that videos are part of General Mills\u2019 marketing and brand awareness,\u201d which does not suggest \u201cthat the videos are profitable in and of themselves\u201d or that the videos \u201care the business that General Mills is engaged in.\u201d\u00a0 Id.<\/em> at 6-7.<\/p>\n

\u201cConsumer\u201d<\/u><\/p>\n

The Court next held that even if Plaintiffs had satisfied the first step, they nonetheless would have failed at step (2) based on their failure to allege facts establishing that they are \u201cconsumers\u201d under the VPPA.<\/p>\n

The VPPA defines \u201cconsumer\u201d as \u201cany renter, purchaser, or subscriber of goods or services from a video tape service provider.\u201d\u00a0 18 U.S.C. \u00a7 2710(a)(1).\u00a0 Read in the statute\u2019s full context, courts have held that \u201ca reasonable reader would understand the definition of \u2018consumer\u2019 to apply to a renter, purchaser or subscriber of audio-visual goods or services,<\/em><\/strong> and not goods or services writ large<\/strong><\/em>.\u201d\u00a0 See<\/em> Order at 7 (citation omitted).\u00a0 That is, the definition of \u201cconsumer\u201d \u201cmirrors the language used to define a \u2018video tape service provider\u2019 as one who is in the business of \u2018rental, sale, or delivery\u2019 of audiovisual material<\/em><\/strong>.\u201d\u00a0 Id.<\/em>; see also<\/em> id.<\/em> at 7-8 (\u201c\u2018[C]onsumer\u2019 is obviously meant to be cabined in the same way [as \u2018video tape service provider\u2019] \u2013 as a renter, purchaser, or subscriber of prerecorded video cassette tapes or similar audio visual materials.\u201d).<\/p>\n

The Court determined that Plaintiffs\u2019 prior purchase of General Mills\u2019 food<\/em><\/strong> \u2013 an \u201cunrelated product\u201d \u2013 does not make them \u201cconsumers of audiovisual material.\u201d\u00a0 Id.<\/em> at 8.\u00a0 The Court further noted that Plaintiffs\u2019 failure at step (2) highlights \u201cthe fundamental issue\u201d with their VPPA claim \u2013 namely, Plaintiffs struggle to plead that they are consumers of General Mills\u2019 audiovisual material because General Mills is not in the business of offering audiovisual material<\/em><\/strong> to consumers.\u00a0 See<\/em> id.<\/em> at 8-9 (\u201cIf General Mills were in such a business, Plaintiffs would not be referring to purchases of General Mills\u2019 food products to establish themselves as consumers.\u201d).<\/p>\n

Implications For Corporate Counsel <\/strong><\/p>\n

The decision in Carroll v. General Mills<\/em> reflects the recent trend among class action plaintiffs\u2019 lawyers of using traditional state and federal laws \u2013 including the long dormant VPPA \u2013 to seek relief for alleged privacy violations.\u00a0 In applying modern technologies to older laws like the VPPA (passed in 1988), courts have grappled with, among other issues, determining who qualifies as a \u201cvideo tape service provider\u201d or a \u201cconsumer\u201d under the statute.<\/p>\n

The Carroll<\/em> decision may suggest that the definitions of \u201cvideo tape service provider\u201d and \u201cconsumer\u201d are relatively straightforward, but other cases can present close calls (e.g.<\/em>, whether a social media platform that delivers various services to users, including video content, is a \u201cvideo tape service provider\u201d).\u00a0 Indeed, courts have recently faced challenges in interpreting the VPPA\u2019s definitions in cases involving, inter alia<\/em>, whether individuals who download a free app through which they view videos qualify as \u201csubscribers\u201d (and therefore \u201cconsumers\u201d) under the statute.<\/p>\n

Given this uncertainty, companies that provide audio visual materials in connection with their business operations should take advantage of the \u201csafe harbor\u201d amendment, adopted in 2013, under which \u201cvideo tape service providers\u201d may lawfully disclose PII with the informed written consent of consumers.\u00a0 To do so, companies should update their online consent provisions as needed to specifically address the VPPA.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr. and Tyler Zmick Duane Morris Takeaways:\u00a0\u00a0In Carroll v. General Mills, Inc., No. 23-CV-1746 (C.D. Cal. Sept. 1, 2023), Judge Dale Fischer of the U.S. District Court for the Central District of California issued a decision\u00a0dismissing (for a second time) a class claim brought against General Mills under the Video Privacy … <\/p>\n

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