Aldana v. Gamestop, Inc.

Background

Alejandro Aldana and Scott Gallie brought a proposed class action against GameStop, Inc. under the Video Privacy Protection Act, a federal law that generally prohibits a video-service provider from knowingly disclosing personally identifying information about a consumer. The plaintiffs alleged that they bought video games from gamestop.com and that GameStop disclosed information about their purchases to Facebook.

The First Amended Complaint alleged two disclosure methods. For Aldana, GameStop allegedly uploaded customer-list information, including his email address and video-game purchases, to Facebook. For Gallie, GameStop allegedly used Facebook’s Tracking Pixel on gamestop.com. The complaint alleged that the Pixel transmitted information about website events—such as searches, game views, cart additions, checkouts, and orders—along with Facebook cookies that could be linked to Facebook identifiers and profiles. Aldana purchased Lost Judgment, and Gallie purchased The Quarry. Both plaintiffs alleged that they learned about the disclosures in July 2022.

GameStop’s Motion

GameStop moved to dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). That rule asks whether the complaint alleges enough facts to make a legal claim plausible, assuming the complaint’s nonconclusory factual allegations are true. GameStop argued that it was not a statutory “video tape service provider” because it sold video games rather than prerecorded video tapes or similar audiovisual materials. It also argued that the plaintiffs had not adequately alleged a knowing disclosure of personally identifying information.

Whether GameStop Was Covered by the Act

The court concluded that the plaintiffs plausibly alleged that GameStop was a “video tape service provider” under the Act. The court reasoned that the video games were audiovisual materials because they contained related images presented with sound, and that the games were prerecorded because their audiovisual content was recorded on discs.

The court found the word “similar” in the Act’s definition more difficult to interpret. It considered the statutory text and legislative history. The legislative history indicated that the Act was aimed particularly at protecting privacy in choices about films and similar video content, rather than creating a broad privacy right covering all prerecorded audiovisual material.

The court nevertheless held that the plaintiffs’ allegations were sufficient because the games included “cut scenes,” which the opinion described as prerecorded video clips that advance a game’s narrative. The court reasoned that a product need not consist exclusively of covered video content to fall within the Act. Because GameStop was alleged to be in the business of selling video games containing such video clips, the plaintiffs plausibly alleged that GameStop could qualify as a covered provider at least with respect to those products.

Whether the Disclosures Were Adequately Alleged

The court explained that a viable claim required allegations connecting three things: the consumer’s identity, the identity of the video material, and the connection between them.

For Aldana, the court held that the allegations about GameStop’s customer lists were plausible. The complaint alleged that GameStop uploaded customers’ email addresses and information about their video-game purchases to Facebook. The court rejected GameStop’s argument that Facebook’s instructions did not allow purchase information to be included in customer lists, because the complaint also cited Facebook instructions concerning offline event data that supported the alleged disclosures. The motion to dismiss was therefore denied as to Aldana.

For Gallie, the court held that the allegations concerning the Facebook Tracking Pixel were also sufficient. The complaint alleged that the Pixel transmitted Facebook cookies along with data about the video games purchased. The court found that the alleged cookies could qualify as personally identifying information because Facebook, the recipient, could decipher them and use them to identify users. The court also rejected GameStop’s argument that the browser, rather than GameStop, disclosed the information. Installing the Tracking Pixel allegedly caused the information to be transmitted to Facebook, which plausibly supported treating GameStop as the disclosing party.

Finally, the court concluded that the complaint plausibly alleged a knowing disclosure. GameStop allegedly installed the Tracking Pixel knowing that it would automatically transmit user information to Facebook. The plaintiffs did not need to allege that GameStop knew exactly how Facebook would use the information after receiving it. The motion to dismiss was therefore denied as to Gallie as well.

Disposition

The court denied GameStop’s motion to dismiss. The case remained pending and continued to be referred to Magistrate Judge Figueredo for general pretrial management. The opinion addressed the sufficiency of the pleadings; it did not determine whether GameStop ultimately violated the Video Privacy Protection Act.