Nino v. CNBC LLC

Background

George Nino, Sandra Sion, and Joseph Wawrocki filed a proposed class action against CNBC LLC under the Video Privacy Protection Act, a federal law restricting the knowing disclosure of information about a person’s video viewing. The plaintiffs alleged that they created accounts on CNBC’s website, watched videos there, and used devices or browsers where they were also logged into Facebook. According to the complaint, CNBC used Facebook Pixel to send Facebook the URL of the video page and each user’s unique Facebook ID. The plaintiffs alleged that CNBC did this without their consent.

CNBC’s Motion

CNBC moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. CNBC argued that the plaintiffs had not plausibly alleged that they were “consumers” under the Video Privacy Protection Act or that CNBC disclosed personally identifiable information to a third party without authorization.

The court explained that the Act covers a person who rents, purchases, or subscribes to goods or services from a video-service provider. The plaintiffs did not allege that they rented or purchased goods or services from CNBC, so their claims depended on qualifying as subscribers. Existing decisions in the district had generally required an ongoing relationship with the provider and a subscription to audiovisual materials, rather than merely an account for other website services. Those decisions involved similar allegations about online publications, accounts that were not required to watch videos, and Facebook Pixel.

The court stated that these authorities strongly supported finding that the plaintiffs had not plausibly pleaded a Video Privacy Protection Act claim. The opinion did not, however, enter a final merits judgment on the claims.

Stay of the Case

The court granted the plaintiffs’ request to stay, or pause, the case because the Second Circuit was considering the related appeal in Salazar v. National Basketball Association. The Second Circuit’s case presented the same central legal question: whether people who created accounts on websites, when accounts were not required to watch videos, qualify as subscribers under the Act.

The court found that a stay would not unduly prejudice CNBC because the case was still undeveloped and discovery had not begun. It also found that waiting could promote efficiency and reduce the possibility of conflicting decisions.

Disposition

The court denied CNBC’s Rule 12(b)(6) motion without prejudice and granted the plaintiffs’ request for a stay. The clerk was directed to terminate CNBC’s motion. The parties were ordered to file a joint status report within seven days after the Second Circuit issued its decision in the related case.