NBCU Hit in District Court with Fourth Attempt at VPPA Violations
A fourth amended class action complaint was filed Friday in a case alleging NBCUniversal Media (NBCU) violated the Video Privacy Protection Act (VPPA) through its use of the Meta tracking pixel. The case, Golden v. NBCUniversal Media, was previously dismissed when the U.S. District Court for Southern New York ruled that the plaintiff did not count as a "consumer" under the Act, but changed its mind following the 2nd Circuit Court of Appeals' ruling in a VPPA case in October (see 2501100009).
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"Even though this case was filed in 2022, Today.com, as of the time of this filing, still tracks and discloses to Facebook the digital subscribers’ viewed Video Media, and most notably, the digital subscribers’ F[acebook]ID" and the personal information associated with it, the new complaint said. "This occurs even when the digital subscriber has not shared (nor consented to share) such information."
Plaintiff Sherhonda Golden filed her first complaint against the media company in November 2022, alleging that NBCU used the Facebook pixel to track her viewing information on Today.com without her consent, in violation of the VPPA. She is a digital subscriber of the site that NBCU owns and operates. The media company asked the court to dismiss the suit in January 2023; the district court let Golden file an amended complaint in response.
After filing her second amended complaint, NBCU filed again to dismiss the suit, which Judge Paul Engelmayer granted in August 2023. Engelmayer ruled that Golden did not count as a "consumer" or, more specifically, a "subscriber" under the VPPA, because "there is no connection between the emails from Today.com for which Golden signed up and the website and mobile app through which the [complaint] alleges she accessed the videos at issue," and her status as a digital subscriber "did not provide her with any video viewing benefits beyond those accessible to any member of the public who had accessed the Today.com website or app."
Golden's third amended complaint was dismissed for failure to state a claim in September 2024, but Engelmayer determined that it would reconsider this ruling after the 2nd Circuit released its decision in NBA v. Salazar in October 2024 that interpreted "consumer" differently (see 2504150047). In November, Engelmayer said he would withdraw the grant of NBCU's motion to dismiss if the 2nd Circuit remanded the NBA case to the district court.