Joiner v. NHL Enterprises

Background

Plaintiffs challenged defendants NHL Enterprises, Inc. and the National Hockey League’s alleged tracking and transmission of information about website visitors to Meta Platforms, Inc. The transmission allegedly occurred through Meta’s “Pixel,” code integrated into defendants’ websites. Plaintiffs asserted claims under the Video Privacy Protection Act (VPPA), the federal Wiretap Act, and state law.

Defendants moved to dismiss. Magistrate Judge Barbara Moses issued a report and recommendation recommending that the motion be granted in full and that plaintiffs be denied permission to amend.

Issues and Analysis

The report and recommendation relied substantially on the Second Circuit’s recent decision in Solomon v. Flipps Media, Inc. That decision held that VPPA liability is limited to disclosure of information that would allow an ordinary person to learn a specific individual’s video-viewing history. It also held that disclosure of a plaintiff’s Facebook identification and video-streaming history through Pixel did not satisfy that standard.

The report and recommendation further concluded that the Wiretap Act claim should be dismissed because defendants were parties to the communications at issue and plaintiffs had not plausibly alleged that the crime-tort exception applied. It recommended evaluating the state-law claims under New York law and dismissing them because New York does not recognize the intrusion-upon-seclusion tort or allow private civil suits for wiretapping.

Plaintiffs objected only to the recommended dismissal of the VPPA claim and the denial of permission to amend. They argued that they had alleged a separate VPPA theory involving disclosure of customer lists containing personal identifiers to Meta. The court overruled that objection because plaintiffs had argued before the magistrate judge only that Pixel’s use caused an improper disclosure; they had not previously argued that customer-list disclosures or other information sent to Meta supported a VPPA claim. The court therefore treated that argument as waived.

Plaintiffs also argued that they should be allowed to amend to develop their customer-list allegations. The report and recommendation had concluded that amendment of the Pixel-based VPPA claim would be futile because Solomon effectively foreclosed that theory. The court stated, however, that it was not clear that every possible amendment would necessarily be futile. Plaintiffs had not specified exactly what amendments they proposed, and the court had not yet been shown whether any proposed amended complaint would be legally sufficient.

Disposition

The court granted defendants’ motion to dismiss. The ruling was without prejudice to plaintiffs filing a motion for leave to amend by October 13, 2025. Any such motion had to include a clean proposed amended complaint, a redlined version showing changes from the first amended complaint, and a memorandum explaining why the amendments would not be futile.