Wilson v. Triller, Inc.
| Citation | 598 F.Supp.3d 82 |
| Decision Date | 18 April 2022 |
| Docket Number | 21-cv-11228 (JSR) |
| Parties | Tamara WILSON, individually and on behalf of all others similarly situated, Plaintiff, v. TRILLER, INC., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Adam J. Levitt, Amy Elisabeth Keller, James Arthur Ulwick, Nada Djordjevic, DiCello Levitt Gutzler LLC, Chicago, IL, Lesley Elizabeth Weaver, Joshua David Samra, Anne Davis, Bleichmar Fonti & Auld LLP, Oakland, CA, James J. Pizzirusso, Hausfeld LLP, Washington, DC, Steven M. Nathan, Hausfeld LLP, David A. Straite, DiCello Levitt Gutzler, New York, NY, for Plaintiff.
Amy Lynn Lenz, Bonnie Keane DelGobbo, Baker & Hostetler LLP, Chicago, IL, Eric Robert Fish, Baker & Hostetler LLP, New York, NY, Joel C. Griswold, Baker & Hostetler, LLP, Orlando, FL, for Defendants.
JED S. RAKOFF, United States District Judge Plaintiff Tamara Wilson brings this class action against defendant Triller, Inc., alleging violations of state and federal law. Wilson claims that Triller's popular social media application – a competitor to TikTok that allows users to create, share and view short-form video content – collects and retains personally identifiable information about its users, including viewing history associated with a purportedly anonymized unique identifier assigned to each user, that Triller then unlawfully discloses to third parties, namely Facebook and Appsflyer. These third parties allegedly combine the disclosures with additional information at their disposal to identify users individually.
Before the Court is Triller's motion to dismiss Wilson's complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, Triller's motion is granted, with prejudice in part and without prejudice in part, and Wilson is granted leave to amend her complaint.
Defendant Triller, Inc., a Delaware corporation with its principal place of business in New York, "maintains and operates a popular social media application" (the "Triller App" or the "App") "that allows users to view, share, upload, and create short videos." ¶ 1.1 "To post, comment, or like videos, or to watch certain content on the App, users must create a Triller account." ¶¶ 8, 30. When creating an account, a user is presented with a screen, depicted below, that provides various ways to sign up for an account:
¶ 31. As seen in the screenshot, which was included in the complaint, at the bottom of the sign-up page is a disclosure regarding Triller's terms of use. This disclosure states that, "[b]y signing up you accept the terms of service [hyperlink] and privacy policy [hyperlink]." Id. Clicking on the hyperlinks or otherwise reviewing the terms of service or privacy policy documents (the "Terms") is not a mandatory step for using the app. Id. 2
On the first page of Triller's privacy policy, which is incorporated into the complaint by reference, there is a header in large, bold print that states "Information We Collect and Receive." ECF No. 35-1 ("Privacy Policy") at 1. Under this header, the policy discloses that Triller collects "Personal Information," meaning "[i]information that could be directly associated with you, or used to contact or identify you, without the aid of additional information, including, without limitation information you provide us when you create an Account such as your name, age, date of birth, gender, address, email address, social media login details, telephone number, photograph ...." Id. It also discloses that Triller collects "Usage Information," including:
(i) times and dates and the extent of your usage of the Platform ... (iv) the User Accounts and/or User Content you view, like comment on, share, follow, message, add memes to, and otherwise interact with, as well as the foregoing that other Users do with respect to your Account and/or User Content; (v) usage history such as areas and pages within the Platform that you access or use and/or which buttons in the Platform you click on ... (ix) other device and Platform access information such as your browser type, operating system, IP address, referring/exit pages, and other unique device identifiers ....
Id. at 2-3. The privacy policy also discloses that it may share the information collected from users with external parties "regarding traffic on the Platform, including pages viewed, content interacted with, and actions taken by Users when visiting the Platform." Id. at 8.
The terms of service provide that "[t]hese terms of service and all other terms and conditions or documents incorporated by reference herein, including, without limitation, our Privacy Policy[,] constitute a legally binding agreement between Company and each registered or unregistered end user" and "[b]y accessing and using" the App and/or creating an account, the user is "deemed to have read, accepted, executed and be bound by" the Terms. ECF No. 38-2 ("Terms of Service") at 1. The terms further state that they are governed by the laws of the State of New York and include a "Limitation of Liability" clause providing that the user agrees not to hold the company or its affiliates liable for any damage, suits, claims, or controversies arising from use of the App. Id. at 21-22.
According to the complaint, Triller collects and shares users’ information with two of its third-party corporate affiliates, Facebook and Appsflyer. ¶ 38. Specifically, Triller allegedly assigns to each user a unique user identification number ("UID"), and every time a user visits the App, Triller transfers to its corporate affiliates certain information associated with the UID, including: (1) the user's country, (2) the user's time zone, (3) any videos the user has loaded, played or liked; (4) any user's profile that he or she has visited; and (4) certain of the user's device information. ¶¶ 42-59. Additionally, when a user visits his or her own profile, Triller allegedly pairs the UID with any data from the user's profile page, such as anything written in the "About Me" section, the URL of the photo chosen by the user as an avatar, and whether the user has a linked Instagram account (and, if so, the username for that account), a linked Snapchat account or an associated Soundcloud URL. ¶ 43.
Plaintiff Tamara Wilson, a citizen and resident of the State of Illinois, alleges that she downloaded the Triller App and created an account, which she used for approximately six months, one hour per day. ¶ 4. Wilson at no point uploaded or posted any videos using the app, but she viewed, "liked," and commented on videos, and sent messages to other viewers concerning their videos. ¶¶ 5-6. Wilson alleges that she does not recall seeing the Terms upon registering for an account with the App. ¶ 7.
On December 31, 2021, Wilson filed suit against Triller alleging that Triller unlawfully shared her information with third parties and asserting claims for: (1) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 ; (2) violation of the Video Privacy Protection Act, 18 U.S.C. § 2710 ; (3) unjust enrichment; and (4) violation of the Illinois Consumer Fraud Act, 815 ILCS §§ 505, et seq.
Wilson seeks to pursue her claims on behalf of a "Nationwide Class" defined as "[a]ll persons who reside in the United States who used the Triller App," and two alternative subclasses: (1) the "Multistate Consumer Protection Class" defined as "[a]ll persons who reside in Illinois or any state with materially similar consumer protection laws who used the Triller App" and (2) the "Illinois Subclass" defined as, "[a]ll persons who reside in Illinois and used the Triller App to view and/or create one or more videos." ¶ 84. The complaint seeks damages, restitution, disgorgement, and various forms of injunctive relief, as well at attorneys’ fees and costs.
Triller filed the present motion to dismiss the complaint in its entirety on February 28, 2022. ECF No. 33. Following full briefing, oral argument was held on March 30, 2022.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must provide grounds upon which her claim rests through "factual allegations sufficient ‘to raise a right to relief above the speculative level.’ " ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).3 To do so, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In applying this standard, the Court accepts as true all well-pled factual allegations, but does not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id. In deciding a motion pursuant to Rule 12(b)(6), the Court may consider documents incorporated by reference and materials "integral" to the complaint. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).
Wilson's first cause of action asserts liability under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. The CFAA makes it illegal for an individual to "intentionally access[ ] a computer without authorization or [to] exceed[ ] authorized access, and thereby obtain[ ]: ... (C) information from any protected computer." 18 U.S.C. § 1030(a)(2)(C).
Although "initially enacted solely as a criminal statute to address the ‘then-novel problem of computer hacking,’ " Fischkoff v. Iovance Biotherapeutics, Inc., 339 F. Supp. 3d 408, 418 (S.D.N.Y. 2018) (quoting Hancock v. Cty. of Rensselaer, 882 F.3d 58, 63 (2d Cir. 2018) ), the statute was later amended to provide a private...
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