Nguyen v. Elsevier Inc.

Background

Kimsa Nguyen and David Garcia filed a proposed class action against Elsevier Inc. based on alleged disclosures of sensitive video-viewing information. The complaint asserts one claim under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. The plaintiffs allege that Elsevier owns Osmosis, an educational platform with more than 2,000 prerecorded health-related videos, and that Osmosis requires subscribers to provide their full names and email addresses.

The plaintiffs allege that Elsevier used cookies and scripts connected to Intercom, a third-party customer-messaging company. According to the complaint, when a subscriber watched a video, Osmosis sent Intercom the video title, the subscriber’s full name, and the subscriber’s email address without the subscriber’s notice or informed written consent. Nguyen and Garcia allege that they registered for Osmosis and experienced these disclosures.

Elsevier’s Motion

Elsevier moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. Elsevier argued that it was not a “video tape service provider” covered by the VPPA because Osmosis was only one of Elsevier’s many products. Elsevier also argued that the information transmitted to Intercom did not qualify as personally identifiable information because the video materials were not sufficiently identified.

Court’s Analysis

The court held that the plaintiffs plausibly alleged that Elsevier was a video tape service provider under the VPPA. The court explained that a defendant’s business or product must be substantially involved in delivering video content and significantly tailored to that purpose. Unlike companies that use videos only peripherally to advertise other products, Osmosis was alleged to be an interactive learning platform centered on a large library of health-related videos, along with transcripts and activities. The court therefore found it plausible that Elsevier was engaged in delivering prerecorded audiovisual materials through Osmosis.

The court also held that the plaintiffs plausibly alleged disclosure of personally identifiable information. Under the VPPA, the plaintiff must allege disclosure of a consumer’s identity, the identity of specific video materials, and the fact that the person requested or obtained those materials. The court relied on allegations that the transmissions contained subscribers’ names and email addresses and that the same transmissions included the titles of videos viewed by the subscribers.

The court rejected Elsevier’s argument that the plaintiffs had to show that the transmissions revealed that a subscriber actually watched a video after obtaining it. The court stated that the VPPA applies to videos a person “requested or obtained” and that the complaint did not need to show that the person watched the video to satisfy that part of the claim.

The court also found a factual dispute about whether the video titles or URLs sufficiently identified specific audiovisual materials. Because factual disputes are not resolved on a motion to dismiss, the court treated the plaintiffs’ allegations as true and allowed the claim to proceed. The court noted that a different conclusion might be possible at summary judgment.

Disposition

The court denied Elsevier’s Rule 12(b)(6) motion to dismiss. The court required Elsevier to file its answer by June 23, 2025. The opinion also states in a footnote that the court orally granted Elsevier’s request for judicial notice as to Exhibits C and D; the provided text does not state a disposition for Exhibits A and B.