Golden v. NBCUniversal Media, LLC

688 F.Supp.3d 150

Sherhonda GOLDEN, Plaintiff, v. NBCUNIVERSAL MEDIA, LLC, Defendant.

22 Civ. 9858 (PAE)

United States District Court, S.D. New York

Signed August 23, 2023

Michael Lee Murphy, Bailey & Glasser LLP, Washington, DC, for Plaintiff.

Benjamin Scott Thomassen, ZwillGen PLLC, Chicago, IL, Jeffrey Landis, ZwillGen

PLLC, Washington, DC, for Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff Sherhonda Golden ("Golden") brings this putative class action against NBCUniversal Media, LLC ("NBCU") alleging violations of the Video Privacy Protection Act, 18 U.S.C. § 2710 ("VPPA" or the "Act"), and unjust enrichment. Golden alleges that NBCU knowingly discloses to Meta Platforms, Inc. ("Facebook")—the parent company of popular social media service Facebook—data containing Golden and other digital visitors' personally identifiable information ("PII") and information about their on-demand video consumption without their consent.

NBCU has moved to dismiss Golden's First Amended Complaint ("FAC") in its entirety. For the following reasons, the Court grants defendant's motion, but grants Golden leave to amend for the limited purpose of pleading in greater detail the operation of Today.com's email newsletter and mobile application ("app") services.

I. Background

A. Factual Background¹

1. Today.com's Website and Newsletter

NBCU owns and operates Today.com, Dkt. 14 ("FAC") ¶ 1, a website in the U.S. that is accessible from a desktop computer or a mobile app, id. ¶ 24. Today.com offers both live, id. ¶ 21, and on-demand, id. ¶ 44, video content. The website allows users to "sign up" for one or more email newsletters. Id. ¶¶ 21, 22, 24. The Court infers from a screenshot in the FAC that the newsletters contained curated lists of links to Today.com content discussing certain news and popular culture topics. Id. ¶¶ 22 (newsletters available for specific subjects, such as "TODAY Food" or "TODAY Parents"), 51; see id. ¶ 21 (splash page encouraging users to sign up for "daily, morning newsletter" to "[g]et the latest in news, pop culture, wellness and more in your inbox" and depicting a live video feed of Today.com's "Popstart Plus" content). The FAC, however, does not allege any details as to the emailed newsletters, such as their format or frequency. It also does not allege that signing up to receive newsletters provides users with access to more or different content than users who do not sign up for a newsletter,² or that users had to pay for access to such newsletters.

Users may sign up to receive newsletters by providing their name, email address, and zip code. Id. ¶ 23; see also id. ¶¶ 21-22. Newsletter recipients provide NBCU with their internet protocol ("IP") address, a unique number assigned to all information technology connected devices, which conveys the device's city, zip code, and physical location to NBCU. Id. ¶ 25. Today.com's then-operative privacy policy states that it automatically collects certain information—including "content you view and duration."³ Id. ¶ 31. It does not, however, tell newsletter recipients that it shares that information with third parties, including Facebook. Id. ¶¶ 31-32; see also id. ¶ 27 (no disclosure when signing up for newsletter).

Today.com installed Facebook's tracking pixel ("Facebook Pixel") to transmit certain information about users to Facebook, which Facebook then uses to show users targeted ads. Id. ¶¶ 33, 35. The Facebook Pixel tracks users' actions on Facebook advertisers' websites and reports them to Facebook. Id. ¶¶ 34-35. To obtain the code for the Facebook Pixel, the website advertiser informs Facebook which website events it wishes to track (for example, video media). Facebook, in turn, generates corresponding pixel code for the advertiser to include in the code of its website. Id. ¶ 34. Specifically, when a digital newsletter recipient watches video content, Today.com transmits to Facebook a cookie⁴ with the video content name, the URL of the prerecorded video that was viewed, and, for visitors with an active and logged in Facebook account, the viewer's Facebook identification number ("FID" or "Facebook ID"). Id. ¶¶ 35, 42. A FID is a unique and persistent sequence of digits that Facebook assigns to each user's account. Id. ¶ 38. Anyone can use a FID to look up a Facebook profile, which "typically contains a wide range of demographic and other information about the user." Id. ¶ 39; see also id. ¶ 6.

When installing the Facebook pixel, "developers and marketers can optionally choose to send additional information about the visit through Custom Data events." Id. ¶ 37 (alterations and emphasis omitted). The FAC alleges that NBCU programmed the pixel to transmit to Facebook information about users' video viewing. See id. ¶¶ 38 (NBCU declined to program website or app so as not to transmit video viewing information), 73 (NBCU programmed pixel so that Facebook received video content name, URL, and users FID). The pixel transmits users' information without their consent or knowledge. Id. ¶ 39. NBCU benefits financially from providing this information to Facebook. Id. ¶ 35.

2. Golden's Experience

In 2022, Golden signed up to receive a Today.com newsletter. Id. ¶ 51. She has since received emails and other communications from Today.com. Id. ¶¶ 13, 51.

Golden accesses Today.com's content through its website and mobile app. Id. ¶ 52. She has also had a Facebook account from approximately 2012. Id.

During the relevant period, Golden used her Today.com subscription to view on-demand video media through Today.com or its mobile app while concurrently logged into her Facebook account. Id. ¶ 13. Golden never agreed, authorized, or otherwise consented to NBCU's disclosure of her personal video viewing information to Facebook, and has not been given written notice stating that it is NBCU's practice to do so. Id. ¶ 53.

B. Procedural History

On November 18, 2022, Golden filed her initial complaint. Dkt. 1. On January 27, 2023, NBCU moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Dkt. 8. On January 30, 2023, the Court directed Golden to file an amended complaint or oppose NBCU's motion by February 17, 2023, and that no further opportunities to amend would ordinarily be granted. Dkt. 13.

On February 17, 2023, Golden filed the FAC, on behalf of a putative class, alleging VPPA and unjust enrichment claims. Dkt. 14. On March 10, 2023, NBCU moved to dismiss the FAC, Dkt. 15, and filed a memorandum of law, Dkt. 16 ("Mem."), and declaration, Dkt. 17, in support. On April 7, 2023, Golden opposed. Dkt. 21 ("Opp."). On April 21, 2023, NBCU replied. Dkt. 22 ("Reply"). In the intervening months, the parties filed multiple letters alerting the Court to, and debating the merits of, supplemental authority. See Dkts. 23, 25-27, 29-31.

II. Applicable Legal Standards

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint is properly dismissed where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558, 127 S.Ct. 1955. When resolving a motion to dismiss, the Court must assume all well-pled facts to be true, "drawing all reasonable inferences in favor of the plaintiff." Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012); see also A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993) ("[A]ll allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor, notwithstanding a controverting presentation by the moving party."). That tenet, however, does not apply to legal conclusions. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Pleadings that offer only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

III. Discussion

NBCU moves to dismiss both counts. It argues that the FAC fails to allege the requisite elements of a VPPA claim—namely that (1) Today.com was a video tape service provider, which (2) knowingly (3) disclosed Golden's personally identifiable information, and that (4) Golden is a Today.com subscriber. See Mem. at 7-21; Reply at 2-9. It argues that the unjust enrichment claim is duplicative of the VPPA claim. Mem. at 21-22. Golden disagrees as to both counts. Opp. at 4-13. The Court addresses the claims in turn.

A. Golden's Video Privacy Protection Act Claim

The VPPA was enacted in 1988, after a newspaper published a profile based on Supreme Court nominee Judge Robert Bork's video rental history. See Carter v. Scripps Networks, LLC, No. 22 Civ. 2031 (PKC), 670 F.Supp.3d 90, 96-97 (S.D.N.Y. Apr. 24, 2023) (citing S. Rep. No. 100-599, at 5 (1988)). It provides that "[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person[ ]." 18 U.S.C. § 2710(b)(1); cf. In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 278 (3d Cir. 2016) (VPPA provides a private cause of action). The Act defines the following terms relevant here:

(1) "consumer" means any renter, purchaser, or subscriber of goods or services from a video tape service provider;

. . . .

(3) "personally identifiable information" includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider; and

(4) "video tape service provider" means any person, engaged in the

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