Mendoza v. Caesars Entm't

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GENARO MENDOZA, Plaintiff, v. CAESARS ENTERTAINMENT, INC., Defendant.

No. 23-cv-03591

United States District Court, D. New Jersey

May 22, 2024

Kevin S. Riechelson COHEN & RIECHELSON On behalf of Plaintiff

Camille Joanne Rosca ORRICK, HERRINGTON & SUTCLIFFE LLP On behalf of Defendant

OPINION

O'HEARN, District Judge.

This matter comes before the Court upon a Motion to Dismiss filed by Caesars Entertainment, Inc. (“Defendant”) (ECF No. 13). For the following reasons, Defendant's Motion is GRANTED.

I. BACKGROUND

Caesar's Entertainment is a casino and entertainment company that owns and operates the website www.caesarscasino.com (“Defendant's Website” or the “Website”). (Pl.'s Compl., ECF No. 1, ¶ 12). The Website offers online video games, such as virtual slots and roulette. (ECF No. 1, ¶¶ 13, 24). Users create accounts on the Website using their email address, name, gender, birthday, and other contact information. (ECF No. 1, ¶ 15). When users create accounts, they receive recurring communications, including emails from Defendant that include links to the Website. (ECF No. 1, ¶ 16).

Defendant's Website incorporates an analytics tool called Facebook Pixel into its code. (ECF No. 1, ¶ 21). Facebook Pixel transmits users' Facebook IDs-unique electronic identifiers that connect users to their Facebook profiles-together with data regarding their activity on the Website to Facebook. (ECF No. 1, ¶¶ 23, 25, 26). The combination of usage data and Facebook IDs allows Facebook to reconstruct specific users' activity on the Website. (ECF No. 1, ¶ 52).

Plaintiff first used his personal email address to sign in to Defendant's Website in 2019 and regularly plays video games on the Website. (ECF No. 1, ¶¶ 45-47). Each time Plaintiff plays a video game on the Website, Defendant-through Facebook Pixel-discloses Plaintiff's Facebook ID and the game he was playing to Facebook. (ECF No. 1, ¶ 23). Plaintiff never consented to disclosure of his information. (ECF No. 1, ¶ 53).

II. PROCEDURAL HISTORY

On July 5, 2023, Plaintiff filed a Class Action Complaint on his own behalf and on behalf of a putative class of users of Defendant's Website, asserting a single claim against Defendant for violation of the Video Privacy Protection Act (the “VPPA” or the “Act”). (ECF No. 1). Defendant filed the Motion to Dismiss now before the Court on October 2, 2023. (ECF No. 11). Plaintiff filed Opposition on October 24, 2024. (ECF No. 13). Defendant replied on October 30, 2024. (ECF No. 14). On April 3, 2024, Plaintiff submitted a Letter with supplemental authority. (ECF No. 18).

III. LEGAL STANDARD

A pleading is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In deciding a motion to dismiss, a district court asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal ... provides the final nail in the coffin for the ‘no set of facts' standard that applied to federal complaints before Twombly.”). In deciding a Rule 12(b)(6) Motion, the court may only consider the facts alleged in the pleadings, any attached exhibits, and any matters of judicial notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).

IV. DISCUSSION

Plaintiff brings a single cause of action alleging that Defendant violated the VPPA by installing Facebook Pixel on its Website and using that application to transmit to Facebook data identifying which games he and other similarly situated parties played online. Congress passed the VPPA in 1988 to prohibit video cassette tape rental stores from disclosing to third parties which movies customers rented. See In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262, 279 (3d Cir. 2016) (describing the history and purpose of the VPPA). Congress intended the VPPA to be flexible and acknowledged that changing technology would require courts to apply the Act to then-unforeseeable media. Louth v. NFL Enters., No. 21-405, 2022 WL 4130866, at *4 (D.R.I. Sept. 12, 2022) (surveying evidence that Congress intended the VPPA to apply to changing audiovisual technology). Indeed, Courts have since applied the VPPA to video streaming providers and other modern platforms that Congress could not have anticipated in 1988. See, e.g., In re Hulu Privacy Litig., No. 11-03764, 2012 WL 3282960, at *5 (N.D. Cal. Aug. 10, 2012) (hereinafter “ In re Hulu (2012)) (finding the VPPA applies to an online video streaming service provider). However, in arguing that the Act applies to online casino games-a medium far attenuated from the video cassette tapes that motivated the Act's original passage-Plaintiff urges an interpretation of the VPPA that stretches these flexible terms too far. And even if the Act did apply to Defendant's Website, Plaintiff fails to allege that he meets the definition of a consumer of Defendant's audio-visual offerings under the Act. Accordingly, the VPPA offers Plaintiff no relief under the facts alleged.

To state a claim under the VPPA, plaintiffs must show (1) the defendant is a “video tape service provider” who (2) “knowingly discloses . . . personally identifiable information” that (3) “concern[s] any consumer of such provider.” 18 U.S.C. § 2710(b)(1); see In re Nickelodeon, 827 F.3d at 279. Defendant moves to dismiss on the grounds that Plaintiff fails to plead facts satisfying any of these criteria. The Court agrees that Plaintiff fails to plead facts alleging Defendant is a video tape service provider under the VPPA. And while Plaintiff does sufficiently plead that Defendant knowingly disclosed his personally identifiable information to a third party, he fails to adequately plead that he is a consumer under the Act. Plaintiff has thus failed to state a claim upon which relief can be granted, and his Complaint must, therefore, be dismissed.

A. Plaintiff Fails to Plead Sufficient Facts to Allege that Defendant is a Video Tape Service Provider Under the VPPA

Plaintiff fails to plead sufficient facts to plausibly allege that Defendant is a video tape service provider under the VPPA. Specifically, Plaintiff fails to allege that Defendant's online casino games are sufficiently akin to video tapes for the statute to apply to Defendant.

The VPPA defines “video tape service provider” as an entity “engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio-visual materials.” 18 U.S.C. § 2710(a)(4). Plaintiff does not allege that Defendant engages in the business of the rental, sale or delivery of prerecorded video cassette tapes. Rather, Plaintiff alleges that Defendant qualifies as a video tape service provider because the video games on its Website are audio-visual materials similar to video tapes under the VPPA. At least one other court in this Circuit has found that audio-visual material is similar to video tapes if the material includes prerecorded videos. Buechler v. Gannett Co., No. 22-1464, 2023 WL 6389447, at *2 (D. Del. Oct. 2, 2023) (“A prerecorded video on a website is an audio-visual medium that a jury could reasonably find to be similar to a prerecorded video cassette tape.”). This finding reflects the apparent consensus of courts beyond this Circuit that audio-visual materials must include some prerecorded video content to trigger application of the VPPA. See, e.g., Aldana v. GameStop, Inc., No. 22-7063, 2024 WL 708589, at *6 (S.D.N.Y. Feb. 21, 2024) (“Plaintiffs have plausibly pled that GameStop is a ‘video tape service provider' under the VPPA by alleging GameStop sold video games that include cut scenes.”); In re Hulu (2012), 2012 WL 3282960, at *5 (finding plaintiffs plausibly alleged that online video streaming service was a video tape service provider under the VPPA because streaming content included prerecorded videos and was therefore similar to videotapes); Stark v. Patreon, Inc., 635 F.Supp.3d 841, 851 (N.D. Cal. 2022) (finding plaintiffs did not “sufficiently allege[] that [the defendant] provided ‘similar audio visual materials'” under the VPPA because, the “complaint include[d] numerous references to ‘videos' and ‘video content'” but failed to “specify whether they were broadcast live or prerecorded”); Louth, 2022 WL 4130866, at *4 (“NFL Enterprises' Motion to Dismiss the plaintiff's VPPA claims is granted to the extent they rely upon the consumption of live content but denied as to pre-recorded content.”); see also Walker v. Meta Platforms, Inc., No. 22-02442, 2023 WL 3607282, at *6 (N.D. Cal. Mar. 3, 2023) (explaining “courts have uniformly declined to interpret ‘similar audio visual materials' as covering ” video material that is not prerecorded) (collecting cases).

Louth v. NFL Enterprises provides a persuasive and thorough analysis of this reasoning. There, the court found that a provider of live sports broadcasts was not a video tape service provider because the broadcasts were not prerecorded and thus not similar to video tapes the VPPA. 2022 WL 4130866, at *4. In concluding that audio-visual material must be prerecorded to be covered under the Act, the Louth Court reasoned:

The adjective “prerecorded” modifies both “video cassette tapes” and “similar audio visual materials” [in the text of VPPA]. This is confirmed in a Senate Report recommending passage of the VPPA, specifically identifying “laser discs, openreel movies,

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