Martin v. Meredith Corp.

• Decision Date: 17 February 2023
• Docket Number: 22cv4776 (DLC)
• Parties: WILLIAM J. MARTIN, individually and on behalf of all others similarly situated, Plaintiff, v. MEREDITH CORPORATION, MEREDITH HOLDINGS CORPORATION, IAC/INTERACTIVECORP, DOTDASH MEDIA, INC., and DOTDASH MEREDITH, INC., Defendants.
• Court: U.S. District Court — Southern District of New York

WILLIAM J. MARTIN, individually and on behalf of all others similarly situated, Plaintiff, v. MEREDITH CORPORATION, MEREDITH HOLDINGS CORPORATION, IAC/INTERACTIVECORP, DOTDASH MEDIA, INC., and DOTDASH MEREDITH, INC., Defendants.

No. 22cv4776 (DLC)

United States District Court, S.D. New York

February 17, 2023

For plaintiff William J. Martin: Eric. M. George Carl A. Roth Ryan Q. Keech Stefan Bogdanovich Ellis George Cipollone O'Brien Annaguey LLP 2121 Avenue of the Stars, 30th Floor Los Angeles, CA 90067

Brett D. Katz Ellis George Cipollone O'Brien Annaguey LLP Carnegie Hall Tower 152 West 57th Street Suite 28S New York NY 10019

For defendants Meredith Corporation, Meredith Holdings Corporation, lAC/InterActiveCorp, Dotdash Media, Inc., and Dotdash Meredith, Inc.: Tiana Demas Cooley LLP 55 Hudson Yards, 43rd Floor New York, NY 10001

David E. Mills Alexander J. Kasner Cooley LLP 1299 Pennsylvania Ave., N.W. Suite 700 Washington, DC 20004

Kyle C. Wong Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, CA 94111

OPINION AND ORDER

DENISE COTE, UNITED STATES DISTRICT JUDGE

William Martin brings this action against five corporations -- Dotdash Meredith, Inc. ("Dotdash Meredith") Meredith Corporation, Meredith Holdings Corporation, IAC/InterActiveCorp, and Dotdash Media, Inc. -- alleging that the defendants unlawfully disclosed information about his video viewing history to Facebook. The defendants have moved to dismiss the complaint in its entirety. For the following reasons, the defendants' motion to dismiss is granted.

Background

The following facts are taken from the complaint and materials incorporated by reference in the complaint. For the purposes of this motion, the plaintiff's factual allegations are taken as true, and all reasonable inferences are drawn in the plaintiff's favor.

Dotdash Meredith is one of the world's largest online media companies. It operates the popular news and media website www.people.com ("People.com"). Most of the content pages on People.com include a video, and some of them consist entirely of videos.

When visitors access People.com, they have the option to create an account on the site as a "Registered User." Dotdash Meredith does not obtain Registered Users' consent to share their personally identifying information or their video viewing behavior with others. Nonetheless, Dotdash Meredith allegedly sends certain information about them to Facebook.

Dotdash Meredith shares information with Facebook using software called the "Facebook Pixel." The Facebook Pixel allows Facebook to match a website visitor to a particular Facebook account.

To install the Facebook Pixel on a website, the website operator starts by adding a publicly available base code created by Facebook (the "Base Pixel") to their website. The Base Pixel, as a default, sends Facebook the name of the webpage viewed by a website visitor, along with the visitor's "Facebook ID." The website operator can also customize the Base Pixel to track specific events, such as a visitor clicking an "add to cart" button, which enables the Facebook Pixel to send additional data to Facebook related to the customized events. Dotdash Meredith has installed the Facebook Pixel on People.com but "has not created any specific events, such as 'add to cart' or 'checkout' for additional tracking."

Plaintiff William Martin is an "active subscriber"^[1] of People.com who often watches videos on the website. He filed this action on June 7, 2022, asserting a claim against Dotdash Meredith under the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710, as well as claims against all five defendants under California Civil Code § 1799.3; the California Online Privacy Protection Act ("OPPA"), Cal. Bus. & Prof. Code § 22575; the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200; and New York General Business Law ("GBL") §§ 349 et seq.^[2] On August 17, the case was reassigned to this Court. On September 16, the defendants filed a motion to dismiss the complaint. The motion was fully submitted on November 30.

Discussion

The defendants move to dismiss the complaint under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. For the following reasons, the motion to dismiss the complaint under Rule 12(b)(6) is granted.

I. Rule 12 (b) (1)

The defendants' Rule 12(b)(1) motion is addressed first. Defendants move to dismiss the complaint under Rule 12(b)(1) on the ground that plaintiff lacks standing.

The plaintiff's standing to sue the defendant is a "threshold question in every federal case." Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (quoting Warth v. Seldin, 422 U.S. 490 498 (1975)). To satisfy the standing requirements imposed by Article III of the Constitution, a plaintiff

must have suffered an injury in fact, (2) there must be a causal connection between the injury and the conduct complained of, and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Venqalattore v. Cornell Univ., 36 F.4th 87, 112 (2d Cir. 2022) (citation omitted). For the purposes of a motion to dismiss for lack of standing, "plaintiffs bear the burden of alleging facts that affirmatively and plausibly suggest that they have standing to sue." Liberian Cmty. Ass'n of Conn, v. Lamont, 970 F.3d 174, 184 (2d Cir. 2020) (citation omitted). "All allegations made in the complaint are accepted as true and construed in favor of the plaintiffs." Id.

The plaintiff has sufficiently alleged standing. Martin was allegedly harmed when his information was disclosed to a third party. This injury is fairly traceable to the defendants' conduct and would be likely to be redressed if the plaintiff prevailed.

The defendants argue that the plaintiff's alleged injury is not an injury in fact because the information disclosed to Facebook does not include information protected by the VPPA. But whether the precise disclosure is actionable under the VPPA is a question about the merits of Martin's claim, rather than his ability to bring his case in federal court. See, e . g., SM Kids, LLC v. Google LLC, 963 F.3d 206, 212 (2d Cir. 2020). Martin's allegations that the defendants disclosed his private information to a third party without his consent are sufficient to confer standing. See, e . g., TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2204 (2021) (noting that intangible harms including "disclosure of private information" can be sufficiently concrete to satisfy Article III).

II. Rule 12(b)(6)

The defendants' motion to dismiss the complaint under Rule 12(b)(6) for failure to state a claim is granted. To survive a motion to dismiss for failure to state a claim, the complaint "must plead enough facts to state a claim to relief that is plausible on its face." Green v. Dep't of Educ. of N.Y., 16 F.4th 1070, 1076-77 (2d Cir. 2021) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Charles v. Orange County, 925 F.3d 73, 81 (2d Cir. 2019) (citation omitted).

"In determining if a claim is sufficiently plausible to withstand dismissal," a court must generally "accept all factual allegations as true" and "draw all reasonable inferences in favor of the plaintiffs." Melendez v. City of New York, 16 F.4th 992, 1010 (2d Cir. 2021) (citation omitted). "Although factual allegations of a complaint are normally accepted as true on a motion to dismiss," however, "that principle does not apply to general allegations that are contradicted by more specific allegations in the Complaint." DPWN Holdings (USA), Inc, v. United Air Lines, Inc., 747 F.3d 145, 151-52 (2d Cir. 2014) (citation omitted). Similarly, a court "must dismiss a claim if a plaintiff pleads himself out of court by alleging facts which show that he has no claim." Soto v. Disney Severance Pay Plan, 26 F.4th 114, 120 (2d Cir. 2022) (citation omitted).

When deciding a motion to dismiss, a court may consider "any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference." Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (citation omitted). Further, even when a document is not incorporated by reference, "the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint." Id. (citation omitted).

A. VPPA

The plaintiff's VPPA claim is dismissed. The VPPA states 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 relief. 18 U.S.C. § 2710(b)(1). The VPPA "creates a private right of action for plaintiffs to sue persons who disclose information about their video-watching habits." In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 278 (3d Cir. 2016). To state a claim under § 2710(b),

a plaintiff must allege that (1) a defendant is a "video tape service provider," (2) the defendant disclosed "personally identifiable information concerning any consumer" to "any person," (3) the disclosure was made knowingly, and (4) the disclosure was not authorized

by another part of the statute. Mollett v. Netflix, Inc., 795 F.3d 1062, 1066 (9th Cir. 2015).

Certain key terms of a VPPA claim are defined in the statute. As relevant to the instant motion, "personally identifiable information" is defined to include "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider." 18 U.S.C. § 2710(a) (3).

The plaintiff's...