Sellers v. Bleacher Report, Inc.

Background

Jabari Sellers brought a proposed class action against Bleacher Report, Inc. under the Video Privacy Protection Act, a federal law that can provide damages when a video provider knowingly discloses personally identifying information about a consumer’s video viewing without authorization. Sellers alleged that Bleacher Report used the Facebook pixel on its website. According to the complaint, when a digital subscriber watched video content, the pixel sent Facebook the viewer’s identity, the video’s name, the video URL, and the viewer’s Facebook user ID.

Sellers alleged that this information was not anonymized and was connected to unique identifiers for Facebook users. He also alleged that Bleacher Report’s newsletter signup and privacy-policy disclosures did not clearly tell subscribers that their viewing information would be shared with third parties or provide a clear way to withdraw consent. Sellers alleged that he had been a Bleacher Report digital subscriber since 2007 and had a Facebook account since 2005, but had not consented to the disclosure.

Bleacher Report moved to dismiss and/or strike the complaint. It argued that Sellers had not plausibly alleged the required elements of a Video Privacy Protection Act claim, including that the videos were prerecorded, that Sellers requested or obtained specific videos, that the disclosed information could identify him, that Bleacher Report knowingly made the disclosure, and that Bleacher Report qualified as a video provider under the statute. Bleacher Report also argued that Sellers had agreed to a class-action waiver. It separately moved to pause discovery while the dismissal motion was pending.

Discussion

The court dismissed the claims only to the extent they relied on live video. The court explained that the statute covers prerecorded video or similar audiovisual materials, and that lower courts had consistently held that it does not cover live content. The court nevertheless read the complaint favorably to Sellers and found that it supported an inference that he watched prerecorded videos. The court noted that Sellers had indicated he would amend the complaint to allege that he watched prerecorded videos.

The court rejected Bleacher Report’s argument that Sellers had to identify the particular videos he watched. The complaint alleged that the Facebook pixel sent Facebook the name and URL of the video that the subscriber watched, along with the subscriber’s Facebook user ID. The court found those allegations sufficient at the pleading stage. It also rejected the argument that a subscriber must have actively clicked on a video to have “requested or obtained” it. The court reasoned that obtaining something does not necessarily require actively choosing it, so the complaint sufficiently alleged that Sellers requested or obtained the videos.

The court also rejected Bleacher Report’s argument that Facebook, rather than Bleacher Report, transmitted the relevant information. The complaint alleged that Bleacher Report sent the information to Facebook by incorporating the Facebook pixel into its website. The court treated the dispute over how the information was transmitted as a factual issue better addressed at summary judgment or trial.

The court further held that the alleged Facebook user ID could qualify as personally identifying information. It reasoned that the user ID was a unique identifier sufficient on its own to identify a person, unlike information that would require combination with additional data. The court also found that the allegations that Bleacher Report deliberately installed the pixel to improve targeted advertising and increase revenue supported a reasonable inference that the disclosure was knowing.

The court found Bleacher Report’s argument that it was not a statutory video provider premature. The statute does not limit covered audiovisual materials by length, and the court stated that websites providing video along with other media can qualify. At minimum, the court found factual questions about how closely Bleacher Report’s business was tailored to delivering audiovisual materials.

Class allegations and discovery

Bleacher Report argued that Sellers’s class allegations should be stricken because he had agreed to a class-action waiver in updated terms of use. The parties agreed that Sellers accepted terms of use when he created an account in 2007. Bleacher Report argued that later updates, website notices, and an email notified Sellers of the waiver.

The court found insufficient evidence that Sellers received or assented to the updated terms. The email submitted by Bleacher Report had no recipient listed and did not show that it was sent to Sellers. The archived website pages also raised factual questions about whether the notices were visible to users. Because the evidence did not establish assent, the court denied the motion to strike as premature and did not reach Sellers’s argument that the waiver was unconscionable.

The court denied the motion to stay discovery as moot.

Disposition

The court dismissed claims based on live video. It otherwise denied Bleacher Report’s motion to dismiss and/or strike. It denied the motion to stay discovery as moot. The order did not state that the live-video claims were dismissed with or without prejudice.