Ballard v. Insomniac Holdings, LLC

Background

Austin Ballard brought a proposed class action against Insomniac Holdings, LLC, asserting one claim under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. The complaint alleges that Insomniac knowingly and intentionally disclosed users’ personally identifiable information to Facebook, TikTok, and other unauthorized third parties.

Insomniac operates a website and mobile app that provide information about its electronic dance music festivals and events. The website and app also provide prerecorded videos, including trailers, event recaps, and Insomniac TV content. Ballard alleges that he subscribed to Insomniac’s newsletter, regularly watched prerecorded videos on the website, and used the same browser for his Facebook account. He alleges that Insomniac’s Facebook and TikTok tracking tools sent video-viewing information and unique identifiers to those companies.

Insomniac moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint did not plausibly allege three required parts of Ballard’s VPPA claim: that Insomniac was a “video tape service provider,” that Ballard was a “consumer” under the statute, and that Insomniac knowingly disclosed personally identifiable information. At this stage, the court treated the complaint’s factual allegations as true and drew reasonable inferences in Ballard’s favor.

Video Tape Service Provider

The VPPA defines a “video tape service provider” as a person engaged in the business of renting, selling, or delivering prerecorded video cassette tapes or similar audiovisual materials. Insomniac argued that video content was only peripheral to its main business of operating live music festivals.

The court found that this argument raised a factual dispute that was premature to resolve on a motion to dismiss. Ballard alleged that Insomniac offered a large library of prerecorded videos and that he regularly watched them on the website. The court held that these allegations plausibly showed that the videos were more than peripheral to Insomniac’s business model at this stage.

Consumer

The VPPA defines “consumer” as a renter, purchaser, or subscriber of goods or services from a video tape service provider. Insomniac argued that Ballard’s newsletter subscription and ticket purchases were not sufficiently connected to the videos he watched. Ballard argued that the statute did not require a subscription specifically to audiovisual content and that his newsletter subscription qualified.

The court agreed with Ballard’s reading of the statute. It held that the VPPA’s consumer definition is not limited to people who subscribe to audiovisual goods or services. The court found that Ballard plausibly alleged that he was a subscriber because he provided his name and email address to receive Insomniac’s newsletter, which gave him access to exclusive or restricted content. The court specifically held that the newsletter subscription could make Ballard a consumer even if it was not connected to the videos he viewed.

The court did not reach Ballard’s alternative argument that he was a VPPA purchaser because he used the website to purchase event tickets.

Knowing Disclosure

Insomniac argued that Ballard did not allege facts showing that Insomniac knew it was disclosing personally identifiable information, including whether Insomniac knew Ballard had a Facebook account or knew or had access to his Facebook identifier.

The court distinguished a Ninth Circuit case involving information that the defendant apparently never possessed. Here, Ballard alleged that Insomniac installed the Facebook and TikTok tracking tools, controlled what information they tracked and transmitted, and sent personal viewing information and unique identifiers. He also alleged that ordinary people could use the disclosed identifiers to identify individuals. The court held that these allegations were sufficient to support a reasonable inference that Insomniac knowingly disclosed personally identifiable information.

Disposition

Judge Susan Illston denied Insomniac’s motion to dismiss. The order resolved only whether Ballard had plausibly stated his VPPA claim at the pleading stage; the opinion did not determine whether Insomniac is ultimately liable.