Feldman v. Star Tribune Media Co.
| Decision Date | 07 March 2023 |
| Docket Number | 22-cv-1731 (ECT/TNL) |
| Parties | Kyle Feldman, on behalf of himself and all others similarly situated, Plaintiff, v. Star Tribune Media Company LLC, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Jeffrey P. Justman and Anderson Tuggle, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant Star Tribune Media Company LLC.
Steven Liddle, Nicholas Alexander Coulson, and Lance T. Spitzig Liddle Sheets Coulson P.C., Detroit, MI; and Nathaniel James Weimar, Tewksbury & Kerfeld, P.A., Minneapolis, MN, for Plaintiff Kyle Feldman.
Plaintiff Kyle Feldman is a startribune.com subscriber, and he occasionally watches videos on that website. In this case Mr. Feldman alleges that Defendant Star Tribune Media Company, the website's owner, violated the federal Video Privacy Protection Act (or “VPPA”), 18 U.S.C § 2710, by sharing his video-viewing history with Facebook using a code analytics tool called Facebook Pixel. He hopes to represent a class of similarly situated startribune.com subscribers.
The Star Tribune seeks dismissal of the case on jurisdictional and merits grounds. It argues that Mr. Feldman lacks Article III standing. Alternatively, it argues that Mr. Feldman's claim fails on the merits. The Star Tribune's motion will be denied. The better answer is that Mr. Feldman suffered a concrete injury in fact traceable to the Star Tribune, meaning there is subject-matter jurisdiction over this case. And the Complaint includes factual allegations plausibly showing each of the VPPA's essential elements.
Under the VPPA, “[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.” 18 U.S.C. § 2710(b)(1). A “video tape service provider” is “any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” Id. § 2710(a)(4). “‘[P]ersonally identifiable information' includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” Id. § 2710(a)(3). “[T]he term ‘consumer' means any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Id. § 2710(a)(1). “Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.” 18 U.S.C. § 2710(c)(1). A VPPA plaintiff may recover “actual damages but not less than liquidated damages in an amount of $2,500,” “punitive damages,” “reasonable attorneys' fees and other litigation costs reasonably incurred,” and “such other preliminary and equitable relief as the court determines to be appropriate.” 18 U.S.C. § 2710(c)(2).[1] Regarding Congress's reasons for enacting the VPPA, the First Circuit has explained:
Congress enacted the VPPA in response to a profile of then-Supreme Court nominee Judge Robert H. Bork that was published by a Washington, D.C., newspaper during his confirmation hearings. S. Rep. No. 100-599, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 4342-1. The profile contained a list of 146 films that Judge Bork and his family had rented from a video store. Id. Members of Congress denounced the disclosure as repugnant to the right of privacy. Id. at 5-8. Congress then passed the VPPA “[t]o preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.” Id. at 1.
Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 485 (1st Cir. 2016).
The Complaint's basic factual allegations are few and seemingly straightforward.
The Star Tribune developed, owns, and operates a website, startribune.com. Compl ¶¶ 2, 7, 12. This website offers an array of video content. Id. ¶ 2. The Star Tribune monetizes its website, in part, by collecting and disclosing subscriber information to Facebook. Id. ¶ 20. The website uses a code analytics tool called “Facebook Pixel,” which tracks the actions of subscribers, such as the pages or videos they view. Id. ¶¶ 21-22. When a Facebook account is created, a corresponding Facebook ID number is also created. Id. ¶¶ 17-18. A user's Facebook profile can be identified and viewed by appending the user's Facebook ID number to the end of “Facebook.com.” Id. ¶ 29.
If an individual watches a video on the Star Tribune website while logged in to Facebook on the same web browser and device, the individual's Facebook ID and a URL of the video the individual watched “are simultaneously sent to Facebook via Facebook Pixel.” Id. ¶¶ 23, 48. The viewer's Facebook ID is sent to Facebook via a “cookie.” Id. ¶ 25. At the same time, something called the “PageView” component of Facebook Pixel discloses to Facebook the URL a viewer accessed. Id. ¶ 26. The Complaint illustrates this process using the partially redacted Facebook ID of an unidentified user. See id. ¶ 25. If Facebook, the Star Tribune, or perhaps someone else were to enter the video URL and the appended-Facebook-ID into a web browser, the Complaint alleges, it would be possible to identify which Star Tribune video a particular user had viewed. Id. ¶¶ 27, 29-30.
Mr. Feldman subscribes to startribune.com. Id. ¶ 2. Mr. Feldman also has a Facebook account, “which he is perpetually logged into.” Id. ¶ 44. His Facebook profile contains his name. Id. ¶ 47. Since becoming a startribune.com subscriber in 2011, Mr. Feldman regularly has watched videos on startribune.com while logged into his Facebook account on the same web browser and device. Id. ¶ 48. Each time Mr. Feldman has watched a video on startribune.com, the Star Tribune disclosed his Facebook ID and the URL of the video that he viewed to Facebook via Facebook Pixel. Id. ¶¶ 26, 49. Mr. Feldman alleges that the Star Tribune violated the VPPA each time it knowingly disclosed his Facebook ID and viewed-video-URLs (and those of would-be class members) to Facebook via Facebook Pixel. Id. ¶¶ 4, 64-71. The proposed class would include: “All persons in the United States who have a Facebook account, subscribed to startribune.com, and watched one or more videos on that Website.” Id. ¶ 54.
“As the party invoking federal jurisdiction, the plaintiff[] bear[s] the burden of demonstrating that [he has] standing.” TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2207 (2021) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). To establish Article III standing at the motion-to-dismiss stage, a plaintiff must allege facts plausibly showing that he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S 330, 338 (2016); see also Thole v. U.S. Bank N.A., 140 S.Ct. 1615, 1621 (2020) (); Lujan, 504 U.S. at 561.[2] “Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted). “In assessing a plaintiff's Article III standing, we must ‘assume that on the merits the plaintiffs would be successful in their claims.'” Am. Farm Bureau Fed'n v. United States Env't Prot. Agency, 836 F.3d 963, 968 (8th Cir. 2016) (quoting Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008)).
“A court deciding a motion under Rule 12(b)(1) must distinguish between a ‘facial attack' and a ‘factual attack.'” Osborn, 918 F.2d at 729 n.6 (citations omitted). “In a facial attack, the court merely needs to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015) (cleaned up). “Conversely, in a factual attack, the existence of subject matter jurisdiction is challenged in fact, irrespective of the pleadings, and matters outside the pleadings . . . are considered.” Id. at 914-15 (cleaned up). Here, “[t]he Star Tribune facially attacks Plaintiff's allegations of ‘concrete' injury, and factually attacks the ‘traceability' of any such injury to the Star Tribune.” Mem. in Supp. [ECF No. 19] at 12.
Begin with the Star Tribune's facial challenge to Mr Feldman's Article III injury allegations. The Supreme Court has explained in some detail what makes an injury “concrete” for Article III's purposes. See, e.g., Ramirez, 141 S.Ct. at 2204-07. A “concrete” injury is “real, and not abstract.” Spokeo, 578 U.S. at 340 (cleaned up). Complaints that allege “economic or physical harms” are almost always no-doubters. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 642 (2007) (Souter, J., dissenting). This is true even if the alleged harm is “only a few pennies.” Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1029 (8th Cir. 2014). “Various intangible harms can also be concrete,” though they also may present more difficult and closer calls. Ramirez, 141 S.Ct. at 2204. As the Court explained in Spokeo in the context of federal statutory claims:
In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. In addition, because Congress is well positioned to...
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