May v. Philo, Inc.

Background

Plaintiffs Tomika May and Matthew Kirschenbaum brought a putative class action against Philo, Inc. under the Video Privacy Protection Act (VPPA). They alleged that Philo operated a digital subscription service for television shows and movies, used Facebook’s tracking pixel on its website, and disclosed subscribers’ Facebook IDs and the titles of videos they requested or obtained to Facebook. The opinion states that May had been a Philo subscriber since October 2021 and that Kirschenbaum had been a subscriber from 2019 through August 2021.

The VPPA prohibits a video-tape service provider from knowingly disclosing personally identifiable information about a consumer. The court noted that a plaintiff may have standing—a legal requirement to bring a federal case—without showing consequential harm because the statute protects a substantive privacy right.

The Motions

Philo moved to dismiss the class-action complaint and separately moved to stay, or pause, discovery while the dismissal motion was pending. Philo submitted evidence that it removed the Facebook Pixel from all pages that play video in August 2022 and that the account associated with May’s email address first played videos on Philo’s website on October 28, 2022. Philo argued that this evidence showed May did not suffer a VPPA privacy violation and therefore lacked standing.

Philo also argued that Kirschenbaum’s claim should be dismissed under Federal Rule of Civil Procedure 41(a)(1)(B), based on two prior voluntary dismissals of the same claim. The court did not decide that argument.

Court’s Analysis

The court concluded that Philo’s evidence, if unrebutted, could support a finding that May lacked standing, but could also resolve May’s claim on the merits. Because the jurisdictional question and the merits were intertwined with disputed facts, the court stated that the relevant facts should be developed before deciding the motion. It therefore allowed limited discovery focused on whether and when Philo removed the Facebook Pixel from video webpages and the dates on which May played videos on Philo’s website.

Disposition

The court deferred ruling on Philo’s motion to dismiss. It granted in part Philo’s motion to stay discovery, allowing the limited discovery described above while staying discovery in all other respects. The court required jurisdictional discovery to be completed by October 6, 2023, set deadlines for supplemental briefing limited to whether May had standing, continued the motion hearing to December 1, 2023, and continued the case-management conference to January 26, 2024. Judge Maxine M. Chesney did not enter a final ruling on the motion to dismiss in this order.