Salazar v. National Basketball Association

Background

Michael Salazar brought a proposed class action against the National Basketball Association under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. He alleged that he had a digital subscription to NBA.com, maintained a Facebook account, and watched NBA.com videos while logged into Facebook. According to the complaint, the NBA used Facebook tracking-pixel code that sent Facebook information about the video watched and the viewer’s Facebook identifier. Salazar alleged that this occurred without his knowledge or consent and that Facebook used the information for targeted advertising.

The NBA moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim. It also argued that Salazar had waived his right to bring a class action. The court did not reach the class-action-waiver argument because it granted the Rule 12(b)(6) motion on another ground.

Standing

The court denied the NBA’s motion to dismiss for lack of standing. It held that Salazar adequately alleged a concrete injury because he claimed that the NBA disclosed private information about his video viewing to Facebook without his consent or knowledge. The court explained that disclosure of private information and intrusion into private affairs are harms traditionally recognized as providing a basis for a lawsuit. It concluded that the alleged injury was sufficient even though Salazar did not allege that the information was made public or false.

Failure to State a VPPA Claim

The court granted the NBA’s motion to dismiss for failure to state a claim. The VPPA protects a “consumer,” defined in relevant part as a renter, purchaser, or subscriber of goods or services from a video-service provider. The court interpreted “subscriber” in context to refer to someone who subscribes to audio-visual materials or services, rather than someone who merely subscribes to another service offered by a business that also provides videos.

Salazar alleged that he signed up for an NBA.com newsletter and received emails and other communications. The court found that these allegations did not show that he subscribed to the NBA’s video services. The complaint did not allege that the newsletters contained videos, that signing up was required to watch NBA.com videos, that the subscription provided exclusive video content, or that it gave subscribers enhanced access to the videos. The complaint instead indicated that visitors could watch the videos without signing in. The court therefore concluded that Salazar was alleged to be a newsletter subscriber, not a subscriber to audio-visual materials protected by the VPPA.

The court also concluded that allegations concerning the NBA application did not state a claim because Salazar did not allege that he downloaded an application or specify which application he meant. Because Salazar was not plausibly alleged to be a VPPA consumer, the court did not decide the NBA’s alternative arguments that it had not knowingly disclosed personally identifiable information or that Salazar had consented to the disclosures.

Leave to Amend and Disposition

Salazar made a general request for permission to amend but did not explain what an amended complaint would allege. The court stated that even an amendment alleging that the NBA newsletter linked to generally available videos would not cure the problem, making amendment futile. The opinion does not state a separate formal disposition of the request for leave to amend. The court denied the Rule 12(b)(1) motion, granted the Rule 12(b)(6) motion, and directed the Clerk of Court to close the case. Judge Jennifer L. Rochon did not decide whether the alleged disclosure ultimately violated the VPPA because the complaint did not plausibly allege that Salazar was a protected consumer under the statute.