Golden v. NBCUniversal Media, LLC
- Paul Engelmayer
- 1:22-cv-09858
- U.S. District Court · Southern District of New York
- 28
In Golden v. NBCUniversal, Judge Engelmayer granted NBCU’s dismissal motion, allowing limited amendment of Golden’s Video Privacy Protection Act claim.
The ruling directly affects Sherhonda Golden’s claims against NBCUniversal and the proposed class allegations based on those claims. NBCUniversal obtained dismissal of the First Amended Complaint, while Golden was allowed to replead the VPPA claim for a limited purpose.
What happened
In Golden v. NBCUniversal Media, LLC, Sherhonda Golden brought a proposed class action accusing NBCUniversal of sending Facebook information linking users to videos they watched on Today.com without consent. She asserted claims under the Video Privacy Protection Act and for unjust enrichment.
NBCUniversal asked the court to dismiss both claims. Judge Engelmayer found that Golden adequately alleged that Today.com provided covered prerecorded video, sent personally identifying information and video details to Facebook, and did so knowingly. But Golden did not adequately allege that she was a qualifying subscriber because the complaint did not connect her free newsletter subscription or app use to access or benefits involving the videos.
Judge Paul A. Engelmayer granted NBCUniversal’s motion to dismiss the amended complaint in its entirety. He dismissed the Video Privacy Protection Act claim but allowed Golden to amend it for the limited purpose of adding details about the newsletter and app; he dismissed the unjust-enrichment claim as duplicative.
The detailed version
- Golden v. NBCUniversal Media, LLC · No. 1:22-cv-09858
- Paul Engelmayer
- Aug. 23, 2023
Background
Sherhonda Golden brought a proposed class action against NBCUniversal Media, LLC, concerning Today.com. She alleged that NBCUniversal installed and programmed Facebook’s tracking pixel to send Facebook a user’s Facebook identification number together with the name and URL of prerecorded video content viewed on Today.com. Golden alleged that she signed up for a Today.com email newsletter, used the website and mobile app to view on-demand videos while logged into Facebook, and did not consent to disclosure of her viewing information.
Golden asserted a claim under the Video Privacy Protection Act (VPPA), a federal statute restricting a covered video provider’s knowing disclosure of personally identifiable information about a consumer’s video materials or services. She also asserted an unjust-enrichment claim. NBCUniversal moved to dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Golden had not adequately pleaded the required VPPA elements and that the unjust-enrichment claim duplicated the VPPA claim.
VPPA allegations
The court held that Golden adequately alleged that Today.com was a “video tape service provider” under the VPPA because it delivered prerecorded audiovisual material through its website and app. The court rejected NBCUniversal’s argument that Today.com’s news and entertainment content fell outside the statute and explained that the presence of some live video did not remove its prerecorded video offerings from the statute’s scope.
The court also held that Golden adequately alleged disclosure of personally identifiable information. The complaint alleged that Today.com sent Facebook a Facebook identification number together with the video’s name and URL. The court concluded that these allegations plausibly connected an identifiable person with specific video material. It further held that Golden adequately alleged a knowing disclosure because NBCUniversal allegedly took affirmative steps to install and program the pixel to transmit users’ video-viewing information to Facebook.
Subscriber requirement
The court found the complaint deficient, however, because the VPPA defines a consumer to include a renter, purchaser, or subscriber of goods or services from a covered video provider, and Golden had not adequately alleged that she was a subscriber. The complaint did not allege that she paid for the app or another service, created a connected NBCUniversal account or profile, received enhanced or restricted video access, or otherwise formed an ongoing relationship concerning Today.com’s video services.
Although Golden signed up for a Today.com newsletter and received emails, the complaint did not explain the newsletter’s content, format, or frequency or connect the newsletter subscription to her access to or viewing of Today.com videos. The complaint likewise did not allege that downloading or using the mobile app was required for video access or provided enhanced access. The court therefore granted NBCUniversal’s motion to dismiss the VPPA claim for failure to plead subscriber status. The court did not hold that payment is always required to establish VPPA subscriber status.
Unjust enrichment
The court dismissed the unjust-enrichment claim because it was based on the same allegations as the VPPA claim and Golden had not explained how the claims differed. Under New York law, unjust enrichment is unavailable when it merely duplicates another claim or cannot provide a remedy for that claim’s defects.
Disposition
Judge Paul A. Engelmayer granted NBCUniversal’s motion to dismiss the First Amended Complaint in its entirety. The court granted Golden leave to amend the VPPA claim only to add allegations about the operation of Today.com’s mobile app and email newsletter. The second amended complaint was due September 7, 2023, and the court stated that Golden would have no further opportunities to amend. The dismissal was without prejudice to timely repleading the VPPA claim for that limited purpose; if Golden did not file by the deadline, the case would be closed with prejudice to filing an amended complaint.
Read the full 28-page opinion on CourtListener, the free public archive maintained by the Free Law Project.