Alex v. NFL Enterprises, LLC

Background

Jim Alex and the other named plaintiffs brought a proposed class action against the National Football League and NFL Enterprises LLC. They alleged that they subscribed to free NFL team email newsletters and then watched publicly available videos on NFL team websites. According to the complaint, the defendants used Facebook Pixel and software-development-kit tracking tools, along with a Facebook browser cookie, to share the plaintiffs’ Facebook identifiers and video-watching data with Facebook without consent.

The plaintiffs asserted a claim under the Video Privacy Protection Act, a federal law that restricts certain disclosures of personally identifying information about people who rent, buy, or subscribe to goods or services from a video-tape service provider. They sought money damages and an injunction requiring the defendants to remove the tracking tools or obtain appropriate consent. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which addresses federal-court subject-matter jurisdiction, and Rule 12(b)(6), which addresses whether a complaint states a legally sufficient claim.

Standing

The court denied the defendants’ motion under Rule 12(b)(1). It held that the plaintiffs had sufficiently alleged standing—the right to bring a case in federal court—because they claimed that the defendants disclosed their private information and video-watching data to Facebook without consent. The court treated that alleged disclosure as a concrete injury.

Video Privacy Protection Act claim

The court granted the defendants’ motion under Rule 12(b)(6). It held that the plaintiffs were not “consumers” under the Act. Although the plaintiffs received NFL team newsletters, they did not allege facts showing that the newsletters made them subscribers to the defendants’ video services. The court emphasized that the plaintiffs did not create accounts or pay for the newsletters, did not receive exclusive content or enhanced access to videos, and could stop visiting the team websites without consequences.

Because the court concluded that the plaintiffs were not consumers covered by the Act, it declined to decide whether the defendants knowingly disclosed personally identifying information.

Amendment request and disposition

The plaintiffs requested permission to amend their complaint. The court denied leave to amend, finding no indication that amendment would be anything but futile because the plaintiffs had not alleged sufficient facts to support a viable claim under the Video Privacy Protection Act.

The final order denied the defendants’ motion to dismiss under Rule 12(b)(1), granted the defendants’ motion under Rule 12(b)(6), and denied the plaintiffs leave to amend. The opinion does not expressly state whether the dismissal was with or without prejudice.