Boelter v. Hearst Commc'ns, Inc.

Decision Date07 September 2017
Docket Number15 Civ. 3934 (AT) (JLC), 15 Civ. 9279 (AT) (JLC)
Citation269 F.Supp.3d 172
Parties Suzanne BOELTER, individually and on behalf of others similarly situated, Plaintiff, v. HEARST COMMUNICATIONS, INC., Defendant. Josephine James Edwards, individually and on behalf of others similarly situated, Plaintiff, v. Hearst Communications, Inc., Defendant.
CourtU.S. District Court — Southern District of New York

Jonathan R. Donnellan, Kristina E. Findikyan, Hearst Corporation Office of the General Counsel, New York, NY, for Defendant.


ANALISA TORRES, United States District Judge

Plaintiff, Josephine James Edwards,1 brings this class action lawsuit against Defendant, Hearst Communications, Inc., alleging violations of the Michigan Video Rental Privacy Act, H.B. 5331, 84th Leg., Reg. Sess., P.A. No. 378, § 2 (Mich. 1988) (amended 2016) ("VRPA"), and unjust enrichment. Defendant moves to dismiss the consolidated class action complaint for lack of subject matter jurisdiction and each party moves for summary judgment. For the reasons stated below, Defendant's motion to dismiss is DENIED, and each party's motion for summary judgment is GRANTED in part and DENIED in part.

I. The Michigan Video Rental Privacy Act

In 1988, Michigan enacted the VRPA "to preserve personal privacy with respect to the purchase, rental, or borrowing of" certain goods. Compl. ¶ 14. The law was enacted following the passage of the federal Video and Library Privacy Protection Act, 18 U.S.C. § 2710, and paralleled the enactment of similar consumer privacy laws in eleven other states. Compl. ¶¶ 13–17; see Boelter v. Hearst Commc'ns, Inc. , 192 F.Supp.3d 427, 447 n.13 (S.D.N.Y. 2016). As relevant to this action, the Michigan statute prohibits a person, and an "employee or agent of the person," "engaged in the business of selling at retail... books or other written materials" from "disclos[ing] to any person, other than the customer," "a record or information concerning the purchase ... of those materials by a customer that indicates the identity of the customer." VRPA § 2. The VRPA defines "customer" as "a person who purchases ... a book or other written material," defines "employee" as "a person who works for an employer in exchange for wages or other remuneration," and defines "employer" as "a person who has 1 or more employees." Id. § 1.

The law's prohibition is subject to five exceptions: disclosure is allowed "[w]ith the written permission of the customer"; "[p]ursuant to a court order"; to "collect payment" from the customer so long as the customer "has received written notice that the payment is due and has failed to pay ... within a reasonable time after notice"; if "the disclosure is for the exclusive purpose of marketing goods and services directly to the consumer," so long as the consumer receives "written notice that the customer may remove his or her name at any time by written notice to the person disclosing the information"; and pursuant to a search warrant or grand jury subpoena. Id. § 3.

Violation of the law constitutes a misdemeanor, id. § 4, and customers who are "identified in ... information that is disclosed in violation of [the] act" may bring a civil action to recover "actual damages, including damages for emotional distress, or $5,000.00, whichever is greater," as well as costs and reasonable attorneys' fees, id. § 5.

In May 2016, during the pendency of this action, the Michigan legislature amended the VRPA. See S.B. 490, 98th Leg., Reg. Sess., P.A. No. 92 (Mich. 2016) (to be codified at M.C.L. § 445.1711 et seq. ) ("Am. VRPA"). The amendment added an exemption for the disclosure of identifying information if the disclosure is "incident to the [discloser's] ordinary course of business." Am. VRPA § 3(d). This new exception, however, "only applies to a record or information that is created or obtained after" the amendment's effective date. Id. The amended VRPA no longer allows an individual to sue for statutory damages. See Am. VRPA § 5(2). In deciding Defendant's prior motion to dismiss, the Court concluded that the amendment does not apply retroactively and the pre-amendment version of the VRPA applies to this case. Boelter , 192 F.Supp.3d at 439–41 ; see also, e.g., Coulter–Owens v. Time Inc. , No. 16-1321, 695 Fed.Appx. 117, 120–21, 2017 WL 2731309, at *3 (6th Cir. June 26, 2017) ; Perlin v. Time Inc. , 237 F.Supp.3d 623, 628–33 (E.D. Mich. 2017) ; Moeller v. Am. Media, Inc. , 235 F.Supp.3d 868, 873–76 (E.D. Mich. 2017) ; Boelter v. Advance Magazine Publishers Inc. (Condé Nast ), 210 F.Supp.3d 579, 593–96 (S.D.N.Y. 2016).

II. Plaintiff

Plaintiff—who goes by Josephine James or Josephine James Edwards—is a Michigan resident. Def. 56.1 ¶¶ 14–20. Plaintiff has subscribed to a number of magazines published by Defendant, including Good Housekeeping, O, The Oprah Magazine , and Redbook. Id. ¶ 47. Plaintiff alleges that Defendant disclosed her personal information—including her name and address and the titles of magazines to which she subscribed—to third parties for Defendant's own gain, and that Plaintiff was not notified of and did not consent to these disclosures. See Compl. ¶¶ 7, 8, 58–60.

Among other subscriptions, Plaintiff maintained a subscription to Good Housekeeping from April 2009 to March 2010. Pl. 56.1 ¶ 48. Plaintiff testified that she "would not have subscribed" to Good Housekeeping if the protections of the VRPA did not exist: "The protections are more important to me than the value of the magazine.... [M]y privacy is more important than a magazine." Findikyan Decl. 1 Ex. H ("Pl. Dep."), at 193:22–25. Plaintiff explained that "what I read is really nobody's business," id. 66:18–19, and that she would not have purchased the subscription even it were free had she known that the publisher would share her personal information, id. 192:5–20.

III. Hearst's Privacy Practices

In each issue of Good Housekeeping sent to Plaintiff from April 2009 to March 2010, the following notice was included in the issue: "From time to time, we make our subscriber list available to companies who sell goods and services by mail that we believe would interest our readers." Def. 56.1 ¶ 49; Pl. 56.1 ¶ 204. The notice provided instructions on how to opt out of such mailings. Id. There is no evidence that Plaintiff ever requested to opt out. Def. 56.1 ¶ 78.

In addition, since at least April 2012, Hearst has maintained a privacy policy on its website. Id. ¶ 66; see Findikyan Decl. ¶ 31 & Ex. DD ("Def. Privacy Policy"), ECF No. 135. This policy is available by following a "Privacy Policy" link at the bottom of e-mails from Good Housekeeping. Def. 56.1 ¶ 63. Plaintiff received e-mails from Good Housekeeping from January 2012 to at least July 2016, id. ¶ 62, but testified that she never saw Hearst's privacy policy, Pl. Dep. 172:20-173:12.

The privacy policy indicates that "if you subscribe offline to one of the magazines published by Hearst..., from time to time we make your postal addresses available to companies for marketing purposes." Def. Privacy Policy § 1(d). The policy states that Hearst "may combine and use any and all information we collect on you either online or otherwise, including from third parties, for marketing purposes." Id. § 3(b). The policy also notes that "Hearst may (and you [the consumer] authorize us to) share or disclose Personally Identifiable Information" to "third party service providers to provide products, services or functions on our behalf (such as sending emails or processing credit cards or fulfilling subscriptions)," and third-party entities that "want[ ] to promote goods and services we think would be of interest to you." Id. § 4(a)(i), (vi). The privacy policy also states that a consumer's contact information may be disclosed "to third parties to allow them to market their products or services to you or for other marketing purposes," and that a consumer can opt-out by contacting Hearst or adjusting their online account preferences. Id. § 5(d).

IV. Defendant's Use of Plaintiff's Information

Defendant's Consumer Marketing department maintains a database of current and former subscribers of its magazines. Def. 56.1 ¶ 5. The database was established on or about June 1, 2008, and includes information relating to all magazine subscribers from June 2008 to the present, and information about some, but not all, subscribers who became inactive prior to June 2008. Id. ¶ 6. The records include names, mailing addresses, subscription information, promotional history, donor information for gift subscriptions, and demographic and other information provided to Defendant by third parties. Id. ¶¶ 7–9.

Defendant admits that it transmitted or authorized transmissions of Plaintiff's identifying information to six3 third-party entities. Each is described below.

A. Acxiom Corporation

Since mid–2008, Defendant's marketing database has been hosted and maintained by Acxiom Corporation ("Acxiom"). Def. 56.11 ¶¶ 06–07. Defendant owns or licenses all the data residing in the database, id. ¶ 111, and pays Acxiom monthly service fees to host, maintain, and operate the database and perform related services, id. ¶ 115. At Defendant's direction, Acxiom has transmitted data from the database to some of Defendant's third-party service providers and partners. Id. ¶¶ 116–17. Acxiom has no authority to transmit Defendant's data without Defendant's permission and may not use the data for its own purposes. Id. ¶¶ 119, 121–22. Pursuant to the contract between Defendant and Acxiom, Acxiom would perform all services as an "independent contractor, and nothing contained herein shall be deemed to create any employment, associate, partnership, joint venture, or relationship of principal and agent or master and servant" between the two parties. Pl. 56.1 ¶ 10.

In May 2008, Acxiom received Plaintiff's identifying information from Defendant. Pl. 56.1 ¶ 18; see Marchese Decl. 1 Ex. 11. In the week prior to December 6, 2012, Acxiom received updated...

To continue reading

Request your trial
9 cases
  • Townsend v. Cochran
    • United States
    • U.S. District Court — Southern District of New York
    • March 25, 2021
    ...of the FDCPA satisf[y] the concrete injury requirement for Article III standing.") (listing cases); Boelter v. Hearst Commc'ns, Inc. , 269 F. Supp. 3d 172, 185-86 (S.D.N.Y. 2017) ("Plaintiff's alleged injury is not a ‘bare procedural violation,’ but a substantive violation ..." causing a co......
  • Townsend v. Cochran
    • United States
    • U.S. District Court — Southern District of New York
    • March 25, 2021
    ...of the FDCPA satisf[y] the concrete injury requirement for Article III standing.") (listing cases); Boelter v. Hearst Commc'ns, Inc., 269 F. Supp. 3d 172, 185-86 (S.D.N.Y. 2017) ("Plaintiff's alleged injury is not a 'bare procedural violation,' but a substantive violation . . ." causing a c......
  • Pratt v. KSE Sportsman Media, Inc.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • February 15, 2022
    ...v. Hearst Commc'ns, Inc. , No. 15CV9279ATJLC, 2017 WL 6458612, at *7 (S.D.N.Y. Dec. 18, 2017) ; Boelter v. Hearst Commc'ns, Inc. , 269 F. Supp. 3d 172, 189 (S.D.N.Y. 2017) ; Edwards v. Hearst Commc'ns, Inc. , No. 15CV9279ATJLC, 2016 WL 6651563, at *1 (S.D.N.Y. Nov. 9, 2016).But those opinio......
  • Madden v. Town of Hempstead
    • United States
    • U.S. District Court — Eastern District of New York
    • March 29, 2019 trial, see Fed. R. Evid. 901, the video may properly be considered on this motion. See, e.g. Boelter v. Hearst Commc'ns, Inc., 269 F. Supp. 3d 172, 202-03 (S.D.N.Y. 2017) (finding that the defendant's argument that a certain exhibit was not properly authenticated was "not compelling," si......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT