NBA Opposes Supreme Court Reviewing 2 VPPA Cases Together

Pending in the high court is a petition for a writ of certiorari from the NBA seeking a review of a decision from the 2nd U.S. Court of Appeals involving the basketball league. The NBA said the appeals court unfairly expanded the scope of the VPPA in its Salazar v. NBA decision (see 2503190047).

The plaintiff in a more recent VPPA case, Solomon v. Flipps Media, also filed a petition for a writ of cert at the Supreme Court earlier in August. In Solomon, the 2nd Circuit declined to review en banc in May.

Detrina Solomon asked the justices on Wednesday to consider her case in the same conference as Salazar, due to the cases' similarities. "Both Parties in Salazar discuss how the Second Circuit’s decision in Solomon might impact the Court’s decision whether to grant or deny certiorari in Salazar,” Solomon said in a letter to the court. “Given this overlap, it is possible that the Court may wish to consider Solomon and Salazar during the same Conference.”

However, the NBA on Thursday disagreed with Solomon's request and urged the court to promptly grant review in Salazar alone. “Solomon’s contrary, self-serving position is as shortsighted as it is aggressive," the NBA said. The “circuit split ... proves that the Salazar question presented is both important and outcome-determinative,” the NBA added. “Solomon says the Court should grant review in her case first and then see what happens. But the fully briefed question presented in Salazar is the one rapidly driving different outcomes in different courts across the country.”

“Put differently, the courts of appeals continue to resolve online VPPA cases more frequently on the Salazar question presented than on the Solomon question presented,” the NBA added. Additionally, the association noted that while both cases were about the VPPA, one centered on the definition of a ‘consumer’ under the statute, while the other questioned what constitutes personally identifiable information under the act.

In Salazar, the 2nd Circuit ruled the definition of a consumer is broad, siding with plaintiff Michael Salazar (see 2501100009). The NBA has called for a SCOTUS review of that decision, which it argues is even more necessary as the circuit split on what it means to be a consumer deepens (see 2508150043 and 2508190026).

Though the NFL, ad and retail groups supported the NBA in its petition (see 2505020048), Salazar maintains SCOTUS review is not necessary (see 2506300062 and 2508130055).

In Solomon, the 2nd Circuit narrowed liability under the VPPA differently, ruling that the statute only applied to the disclosure of information that would allow an ordinary person to learn a specific individual's video-watching history (see 2505010046). Since the information shared was a sequence of characters and numbers, the court ruled an ordinary person could not have correctly interpreted it to identify the plaintiff's Facebook ID, nor the title and URL of the video she watched.

“The text of the law Congress passed straightforwardly forbids, without relevant qualification, disclosing information that ‘identifies a person as having requested or obtained specific video materials,’” said Solomon in her petition for SCOTUS review Wednesday. "And yet the Second, Third, and Ninth Circuits have taken it upon themselves to add a new clause to that sentence,” creating the ‘ordinary person’ standard.

“There is a reason Congress did not add the ‘ordinary person’ clause to the law,” she added. “Under the ‘ordinary person’ rule, the video clerk who inspired the Act’s passage by disclosing Judge Bork’s video-rental history to the Washington City Paper need only have used a simple code, or a foreign language, to fully subvert the function of the law with trivial ease,” as “an ‘ordinary person’ would not know the code or speak the language.”