Austin-Spearman v. AMC Network Entm't LLC

• Decision Date: 07 April 2015
• Docket Number: No. 14 Civ. 6840NRB.,14 Civ. 6840NRB.
• Citation: 98 F.Supp.3d 662
• Parties: Ethel AUSTIN–SPEARMAN, individually and on behalf of all others similarly situated, Plaintiff, v. AMC NETWORK ENTERTAINMENT LLC, and AMC Networks, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

98 F.Supp.3d 662

Ethel AUSTIN–SPEARMAN, individually and on behalf of all others similarly situated, Plaintiff

v.AMC NETWORK ENTERTAINMENT LLC, and AMC Networks, Inc., Defendants.

No. 14 Civ. 6840NRB.

United States District Court, S.D. New York.

Signed April 7, 2015.

Matthew Wurgaft, Esq., Kravis & File, P.C., East Rutherford, NY, Rafey S. Balabanian, Esq., Benjamin S. Thomassen, Esq., Alicia E. Hwang, Esq., Edelson PC Chicago, IL, for Lead Plaintiff.

Sandra D. Hauser, Esq., Natalie J. Spears, Esq., Dentons U.S. LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

Plaintiff Ethel Austin–Spearman (“Austin–Spearman”) commenced this action against defendants AMC Network Entertainment, LLC, and AMC Networks, Inc. (collectively, “AMC”), alleging that AMC disclosed her personal information in violation of the Video Privacy Protection Act, 18 U.S.C. § 2710. AMC moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Following oral argument on this motion (and presumably anticipating this decision), Austin–Spearman requested leave to amend the complaint to add new factual allegations. The proposed amendment adds an additional piece of information but leaves intact the Court's analysis of the original complaint. For the reasons stated herein, AMC's motion is granted, but Austin–Spearman is granted to leave to amend.

BACKGROUND

AMC maintains a website that provides information about its television programming, on which it offers video clips and episodes of many of its television shows. Cmplt. ¶ 11. Web users may access the website's content either as a guest or by using an existing online account with participating cable television providers. Id. ¶ 12.

AMC's website also incorporates a software development kit (“SDK”) provided by Facebook. Id. ¶ 23. This SDK allows companies to add Facebook-related features to their websites: for instance, sites can include a “Facebook Login,” which lets visitors log into a website using their Facebook credentials, or a “Facebook Social Plugin,” which lets visitors use Facebook's “Like,” “Share,” and “Comment” functions. Id. ¶ 15. To make use of this SDK, a company will add Facebook's source code to its website and then customize that code. Id. ¶ 17.

Notably, the Facebook SDK relies in part on cookies. Id. ¶ 18. In particular, through its “c_user” cookie, Facebook's code allegedly forces a user's web browser to look for the user's Facebook ID.¹ Meanwhile, if a person has chosen to remain logged into Facebook by checking the “keep me logged in” button on Facebook's homepage, this “c_user” cookie will continue to operate, regardless of what the user does with the web browser. Id. ¶ 20. If a person then visits a webpage (such as AMC's) that includes Facebook's SDK, Austin–Spearman asserts, “data about the user's web browsing may be silently transmitted back to Facebook.” Id. ¶ 21. Specifically, Austin–Spearman alleges that when a user clicks on a hyperlink on AMC's webpage (for example, to view a video clip), Facebook's SDK “initiates a transmission to Facebook called ‘/plugins/like.php?’ which contains values from the ‘c_user’ cookie and full URL of the video's webpage.” Id. ¶ 24. “As a result of these data transmissions, Facebook receives a full record of: (i) the Facebook ID of the visitor browsing AMC's website, along with (ii) the exact titles of the audiovisual material (i.e. the video clips) that they viewed.” Id. ¶ 26.

Austin–Spearman has been a member of Facebook since 2007 and remains logged in through her web browser. Id. ¶ 36. Since 2013, she has been visiting the AMC website to, among other things, watch video clips from AMC's The Walking Dead. Id. ¶ 37. She alleges that as she viewed these video clips, AMC disclosed her Facebook ID and the titles of the videos she viewed to Facebook. Id. ¶ 40.

Austin–Spearman filed the present complaint on August 22, 2014. The complaint, a putative class action, contains one cause of action under the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710. The VPPA provides that “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d),” 18 U.S.C. § 2710(b)(1), and it specifies that “the term ‘consumer’ means any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Id. § 2710(a)(1). AMC moved to dismiss the complaint on October 23, 2014, raising two arguments in support of the motion:

first, that Austin–Spearman lacks Article III standing, and second, that Austin–Spearman does not constitute a “subscriber” under the VPPA. The motion was fully briefed on December 22, 2014, and oral argument was held on March 25, 2015.

As noted earlier, after oral argument, on March 27, 2015, Austin–Spearman submitted a letter requesting leave to amend the complaint to add new factual allegations in the event the Court otherwise deemed her complaint inadequate. Below, we address AMC's motion to dismiss the complaint as pled and Austin–Spearman's request for leave to amend in turn.

DISCUSSION

I. Motion to Dismiss—Legal Standard

“To survive a motion to dismiss for lack of subject-matter jurisdiction based on standing pursuant to Rule 12(b)(1), the plaintiff ‘must allege facts that affirmatively and plausibly suggest that it has standing to sue.’ ” New York State Psychiatric Ass'n, Inc. v. UnitedHealth Grp., 980 F.Supp.2d 527, 533 (S.D.N.Y.2013) (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.2011) ). Where the defendants place jurisdictional facts in dispute, the court may properly consider “evidence relevant to the jurisdictional question [that] is before the court.” Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir.2001). However, if the defendants challenge only the legal sufficiency of the jurisdictional allegations, “the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Id.

Similarly, a court ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) must accept as true all factual allegations in the complaint and draw all reasonable inferences in plaintiff's favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir.2009) ; Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir.2007). A motion to dismiss may be granted only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Still v. DeBuono, 101 F.3d 888, 891 (2d Cir.1996). Nevertheless, a plaintiff's “[f]actual allegations must be enough to raise a right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. If a plaintiff “ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Id. This pleading standard applies in “all civil actions.” Iqbal, 556 U.S. at 684, 129 S.Ct. 1937 (internal quotation marks omitted).

II. Motion to Dismiss–Analysis

A. Article III Standing

AMC first seeks dismissal of the complaint on the ground that Austin–Spearman lacks standing under Article III to assert her current claims. To establish Article III standing, a plaintiff bears the burden of establishing that she has suffered (1) “an injury in fact, which is an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;” (2) “a causal connection between the injury and the conduct complained of;” and (3) “a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Here, AMC argues that Austin–Spearman has failed to establish standing because she has failed to allege an “injury in fact” sufficient to satisfy Article III. According to AMC, Congress cannot create injury and thereby confer constitutional standing “by simply enacting a statute that creates legal obligations to an individual.” Def's Br. at 7. As a result, they assert, a plaintiff seeking relief under a statute must plead an injury beyond the statutory violation—i.e., in the context of the VPPA, harm resulting from disclosure rather than simply disclosure itself—in order to have alleged a constitutionally cognizable injury. Austin–Spearman, who has claimed as harm only disclosure in violation of the statute, would thus have no standing to bring the present action.

AMC's argument, however, fundamentally underestimates Congress's ability to confer standing through statutory enactment. It is true, as AMC proclaims, that Congress “cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Def's Br. at 7 (quoting Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ). Nevertheless, while Congress cannot confer standing in the absence of an injury, it can “broaden the injuries that can support constitutional standing,” Donoghue v. Bulldog Investors Gen. P'ship, 696 F.3d 170, 179 (2d Cir.2012), by “creating legal rights, the invasion of which creates standing,” id. at 175 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) ). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“Statutory broadening of the categories of injuries that may be alleged in support of standing is a different matter from abandoning the requirement...