Salazar v. National Basketball Association

Background

Michael Salazar brought a proposed class action against the National Basketball Association under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. He alleged that he signed up for an NBA.com digital subscription in 2022, maintained a Facebook account, and watched NBA.com videos while logged into Facebook. According to the complaint, the NBA used Facebook tracking-pixel code that sent Facebook information about the video viewed and Salazar’s Facebook identifier. Salazar alleged that the NBA did this without his knowledge or consent and that Facebook used the information for targeted advertising.

The NBA moved to dismiss the complaint in its entirety. It argued that Salazar lacked constitutional standing, had not stated a VPPA claim, and had waived the right to bring a class action.

Standing

The court denied the NBA’s motion under Federal Rule of Civil Procedure 12(b)(1) for lack of standing. Standing is the requirement that a plaintiff show a concrete injury connected to the defendant’s conduct that a court can remedy.

The court held that Salazar adequately alleged a concrete injury because the complaint claimed that the NBA disclosed private information about his video viewing to Facebook without his knowledge or consent. The court explained that disclosure of private information and intrusion into private affairs are harms traditionally recognized as supporting lawsuits. It rejected the NBA’s argument that there was no injury because the information was truthful and was not publicly disseminated. The court also found that the allegations were sufficient, at the pleading stage, to support the view that a reasonable person could find the unauthorized sharing offensive.

VPPA Claim

The court granted the NBA’s motion under Rule 12(b)(6) for failure to state a claim. Rule 12(b)(6) tests whether the complaint alleges enough facts to state a legally plausible claim, assuming the complaint’s factual allegations are true.

The VPPA protects a “consumer,” defined in relevant part as a renter, purchaser, or subscriber of goods or services from a video-tape service provider. The court interpreted “subscriber” in the context of the statute to mean a person who subscribes to audio-visual materials or services, rather than merely any product or service offered by a business that also provides video content.

The complaint alleged that Salazar registered for NBA.com by signing up for an online newsletter and providing an email address. It did not allege that the newsletter contained videos, that a subscription was required to watch NBA.com videos, or that subscribers received exclusive video content or enhanced access. The complaint’s own allegations indicated that visitors could watch the videos without signing in. The court therefore concluded that Salazar was alleged to be a newsletter subscriber, not a subscriber to the NBA’s audio-visual materials, and dismissed the VPPA claim.

The court also found that the passing allegations concerning the NBA application did not adequately plead an application-related claim. Because Salazar had not adequately alleged that he was a VPPA consumer, the court did not decide the NBA’s alternative arguments concerning knowing disclosure or consent. The court likewise did not resolve the NBA’s argument that Salazar had waived the right to bring a class action.

Leave to Amend and Disposition

Salazar requested leave to amend in a general statement asking to address issues identified by the court. The court found no sufficient basis for amendment and concluded that adding an allegation that the newsletter linked to generally available NBA.com videos would not cure the deficiency. The court therefore concluded that such an amendment would be futile.

Judge Rochon denied the NBA’s Rule 12(b)(1) motion, granted its Rule 12(b)(6) motion, and directed the Clerk of Court to close the case. The opinion does not add a “with prejudice” or “without prejudice” qualification to the dismissal.