2nd Circuit's Denial on VPPA Case Solidifies 'Ordinary Person' Standard, Lawyers Say
The 'ordinary person' standard is a commonsense approach to Video Privacy Protection Act (VPPA) cases that is gaining support from several U.S. Circuit Courts of Appeal, said Troutman Pepper lawyers in a Monday blog post. Most recently, the 2nd U.S. Circuit Court of Appeals' denial of an en banc review of its May 2025 ruling in Solomon v. Flipps Media bolstered the approach.
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Case 23-7597 deals with information sent to Facebook, allegedly unlawfully. The information was a sequence of characters and numbers that allegedly could have identified the plaintiff's Facebook ID, as well as the title and URL of the video she watched, if correctly interpreted (see 2505010046). But the 2nd Circuit found that the average person would not have been able to identify the plaintiff from that information, ruling that the VPPA did not apply.
But plaintiff Detrina Solomon, a subscriber to defendant Flipps Media's streaming service, filed a petition for en banc review of the May 1 decision, challenging the "court's adoption of the 'ordinary person' standard as being contrary to the text and purpose of the VPPA," the blog said. She instead "argued that the 'reasonable foreseeability' standard, which would focus on whether Meta, as opposed to an ordinary person, could interpret the information the Pixel transmitted, should be applied," and that a "review of the court order was necessary because the decision had 'effectively shut the door for Pixel-based VPPA claims.'"
On July 28, the 2nd Circuit denied the request for review, and Solomon now has until Oct. 26 to file a petition for certiorari at the U.S. Supreme Court.
Flipps "is the first circuit court ruling to apply the ordinary person standard to VPPA claims premised on information transmitted by the Meta Pixel," the Troutman Pepper lawyers said. "Businesses now have [a] trio of cases ... to combat VPPA claims at the pre-answer motion to dismiss stage."
They added, "While a petition to the Supreme Court may still occur, the sound reasoning of the Second, Third, and Ninth Circuits should prevail and put an end to VPPA claims premised on the transmission of information through the Meta Pixel." Despite this ruling, "businesses that employ tracking technologies should understand the technologies being deployed and the various type of data being shared in order to reduce the risks of additional lawsuits being pursued under different theories."