May v. Philo, Inc.

Background

Tomika May and Matthew Kirschenbaum sued Philo, Inc. under the Video Privacy Protection Act (VPPA). The VPPA generally prohibits a video service provider from knowingly disclosing personally identifiable information about a consumer. The plaintiffs alleged that Philo used the Facebook Pixel on its website and disclosed to Facebook each subscriber’s Facebook ID and the title of the video the subscriber requested or obtained. They asserted the claim on their own behalf and for a proposed class.

Philo moved to dismiss. The court initially deferred ruling and allowed discovery concerning whether May had standing—that is, whether she had suffered the type of injury required to bring the claim in federal court. After the discovery was completed, the plaintiffs said they would not file additional opposition. The court decided the motion based on the parties’ written submissions and vacated the scheduled hearing.

May’s Standing

Philo submitted evidence that it removed the Facebook Pixel from all pages that played video on its website in August 2022. It also submitted evidence that the Philo account associated with May’s email address first played videos on the website on October 28, 2022. Philo argued that May therefore had not suffered a violation of her privacy rights and lacked standing.

The court had previously found that Philo’s evidence, if unrebutted, was enough to show that May lacked standing. After giving the plaintiffs an opportunity to conduct jurisdiction-related discovery, the court found that they had offered no evidence rebutting Philo’s showing. The court therefore granted the motion to dismiss as to May’s claim.

Kirschenbaum’s Claim

The parties did not dispute that Kirschenbaum had been a named plaintiff in two earlier actions asserting a VPPA claim based on the same allegations. They also did not dispute that the plaintiffs in both earlier actions, including Kirschenbaum, voluntarily dismissed those actions. Philo argued that Rule 41(a)(1)(B) therefore barred Kirschenbaum’s third action based on the same claim.

The plaintiffs did not dispute that Rule 41(a)(1)(B) would prevent Kirschenbaum from proceeding. Instead, they argued that Philo should be prevented from relying on that rule under judicial estoppel, a doctrine that can restrict a party from taking inconsistent positions after a court has relied on or accepted an earlier position.

The court rejected that argument. In the earlier actions, Philo had argued that the original plaintiffs lacked standing and therefore could not amend their complaints to add plaintiffs such as Kirschenbaum. But the earlier courts never ruled on Philo’s dismissal motions because the plaintiffs voluntarily dismissed the actions first. The court therefore found judicial estoppel inapplicable and granted the motion to dismiss as to Kirschenbaum’s claim.

Disposition

The court granted Philo’s motion to dismiss and directed the clerk to close the file. The opinion does not separately state that the dismissal was with or without prejudice. Judge Maxine Chesney also vacated the scheduled hearing.