Afriyie v. NBCUniversal Media, LLC

Background

Amma Afriyie and Roy Campbell filed a putative class action against NBCUniversal Media, LLC and Peacock TV, LLC. They alleged that the defendants’ Peacock, CNBC News, NBC News, and NBC Sports mobile applications sent video titles, video identifiers, device identifiers, user-profile identifiers, and, for some applications, email addresses and GPS-location data to Adobe and mParticle through software development kits.

Afriyie used and purchased the Peacock and CNBC News applications. Campbell used and purchased Peacock. Neither plaintiff used or purchased the NBC News or NBC Sports applications. The plaintiffs alleged violations of the Video Privacy Protection Act, the New York Video Consumer Protection Act, New York General Business Law § 349, and unjust enrichment.

Class Standing

The court considered whether the plaintiffs could represent users of applications they had not used. It held that the plaintiffs had individual standing for claims involving the Peacock and CNBC News applications because they had used and purchased those applications. They lacked individual standing regarding the NBC News and NBC Sports applications because they had not used or purchased them.

The court also held that the plaintiffs lacked class standing to represent users of the unpurchased applications. Under the Second Circuit’s class-standing test, a named plaintiff must have suffered an injury and must show that the challenged conduct raises the same basic concerns as the claims of the proposed class members. The court found that the purchased applications were alleged to disclose device and user-profile identifiers, while the unpurchased applications were also alleged to disclose email and GPS-location data. Those differences could require different evidence, and the plaintiffs lacked an incentive to develop arguments concerning data they had not alleged was disclosed to them.

Video Privacy Claims

The court then addressed the merits of the Video Privacy Protection Act and New York Video Consumer Protection Act claims concerning the purchased applications. Both statutes define personally identifiable information as information that identifies a person as having requested or obtained specific video materials or services. The court treated the statutes’ definitions as materially the same for purposes of the motion.

The court adopted a framework under which personally identifiable information must be capable of identifying a particular individual as having watched particular videos. A plaintiff may rely on information that identifies a person by itself or on information that becomes identifying when combined with other information held or obtained by the recipient. For a linkage theory, the court said the necessary additional information must be publicly or widely available, and the connection must not be too remote. The court also said the analysis is generally category-based.

Applying that framework, the court held that the complaint did not plausibly allege that the purchased applications disclosed personally identifiable information. The device identifiers identified devices, not particular people. The allegations concerning Adobe IDs and mParticle IDs showed only that they pointed to individualized profiles; the complaint did not adequately explain whether those profiles contained names, addresses, email addresses, telephone numbers, or other information identifying particular people in connection with their video viewing.

The court also rejected the plaintiffs’ linkage theory. The complaint did not adequately describe the additional information Adobe or mParticle would use to connect the disclosed identifiers to particular individuals, and it did not allege that this additional information was publicly or widely available. The court therefore dismissed the Video Privacy Protection Act and New York Video Consumer Protection Act claims under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim.

State-Law Claims

The court held that the New York General Business Law § 349 claim was inadequately pleaded. To the extent it was based on disclosures allegedly required by the federal and state video-privacy statutes, it failed because the plaintiffs had not plausibly alleged disclosure of personally identifiable information. To the extent it alleged undisclosed data-sharing practices more generally, the court found that the complaint did not present an independent theory and instead duplicated the video-privacy claims.

The court also dismissed the unjust-enrichment claim. That claim was based on the same alleged collection and disclosure of personally identifiable information and video-viewing history as the video-privacy claims. Because it depended on those defective allegations, it could not cure their deficiencies.

Disposition

The court granted the defendants’ motion to dismiss in full and dismissed the First Amended Complaint in its entirety. The plaintiffs were granted permission to file a motion for leave to file an amended complaint within 21 days of the Opinion and Order. The order states that failure to make a timely motion or to show that amendment would not be futile will result in dismissal of the action with prejudice.