Lamb v. Forbes Media LLC

Background

Joseph Lamb and Amber Stouffe brought a proposed class action against Forbes Media LLC under the Video Privacy Protection Act, 18 U.S.C. § 2710. They alleged that Forbes used Facebook’s Tracking Pixel and related tools to send Facebook information about their activity on Forbes’s website, including video URLs, video titles, Facebook-related identifiers, and other identifying information. They alleged that this information allowed Facebook to identify the videos they watched and associate that viewing activity with them.

Forbes moved to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that the plaintiffs lacked Article III standing, and under Rule 12(b)(6), arguing that the complaint failed to state a legally sufficient Video Privacy Protection Act claim. Forbes argued that it was not a covered video provider, that the information allegedly disclosed was not personally identifiable information under the statute, that any disclosure was not knowing, and that the plaintiffs were not statutory consumers or subscribers.

Standing

The court treated Forbes’s Rule 12(b)(1) challenge as a fact-based jurisdictional challenge because Forbes submitted evidence outside the complaint. Forbes’s evidence asserted that Lamb and Stouffe had accessed written articles rather than webpages devoted solely to video content. The plaintiffs submitted declarations stating that they had watched standalone videos on Forbes’s website, generally while logged into Facebook.

The court found that Forbes’s evidence materially contradicted the complaint’s allegations, creating a factual dispute about whether the plaintiffs had watched specific videos and whether Forbes had disclosed their private information. The court found that the plaintiffs had sufficiently controverted Forbes’s evidence, particularly because Lamb’s evidence called into question Forbes’s conclusion that he had registered for the website shortly before filing suit. Resolving the factual dispute in the plaintiffs’ favor at this stage, the court found that they had sufficiently alleged a concrete injury based on the disclosure of their personal information and video-viewing history. Forbes’s Rule 12(b)(1) motion was therefore DENIED.

Whether the Complaint Stated a Claim

The court concluded that the complaint adequately alleged several elements of a Video Privacy Protection Act claim. First, Forbes could qualify as a “video tape service provider” because the statute focuses on delivering prerecorded or similar audiovisual materials, and the plaintiffs alleged that Forbes hosted and delivered thousands of videos. The court rejected Forbes’s argument that its primary identity as a news provider excluded it from the statute.

Second, the court found that the complaint adequately alleged disclosure of personally identifiable information. The plaintiffs alleged that Forbes sent Facebook identifiers, including Facebook IDs and cookies, together with URLs containing video titles and information indicating that the webpages featured videos. The court concluded that these allegations plausibly connected particular individuals with specific videos. It also found that the allegations that Forbes installed and activated Facebook’s Tracking Pixel and Advanced Matching tools sufficiently pleaded a knowing disclosure.

Subscriber Requirement

The court focused on whether Lamb and Stouffe were “subscribers” of audiovisual materials, as required for them to qualify as “consumers” under the statute. Stouffe alleged that she signed up for Forbes Vetted, a newsletter. The court held that the complaint did not connect the newsletter subscription to her video viewing, allege that the newsletter was required to access Forbes videos, or allege that it enhanced her access to or experience with those videos. The court therefore found that she was alleged to be a newsletter subscriber, not a subscriber to audiovisual materials.

Lamb alleged that he created an account on Forbes’s website. The court found that the complaint did not explain whether an account was required to access Forbes videos, whether it provided access to restricted video content, or whether it gave him additional benefits as a viewer. The court therefore concluded that the allegations characterized Lamb as a subscriber to a website, not a subscriber to audiovisual materials under the Video Privacy Protection Act.

Disposition and Amendment

The court dismissed the plaintiffs’ Video Privacy Protection Act claim because the complaint did not plausibly allege that either plaintiff was a statutory subscriber to Forbes’s video materials. Judge Andrew L. Carter, Jr. granted Forbes’s Rule 12(b)(6) motion without prejudice. The plaintiffs may file a motion to amend for the limited purpose of adding factual allegations about how the Forbes account and newsletter operated and how they directly connected to Forbes’s video content. The court stated that the plaintiffs would have no further opportunities to amend.