Ninth Circuit Examines VPPA Standing

Advertising Law

After concluding that the plaintiff in Robins v. Spokeo has Article III standing to pursue his case, the U.S. Court of Appeals, Ninth Circuit may be considering a similar issue in the context of the Video Privacy Protection Act.

The dispute began when Chad Eichenberger claimed ESPN violated his privacy rights under the statute by sharing his Roku device identifier with a third party for the purpose of data analytics. Eichenberger used the device to watch the sports channel’s videos and claimed that the transfer of data violated the VPPA’s prohibition on transmitting personally identifiable information and viewing history.

A district court judge granted ESPN’s motion to dismiss the putative class action, ruling that the plaintiff’s Roku device serial number and his viewing records were not PII.

Eichenberger appealed to the Ninth Circuit, and the federal appellate body agreed to hear the case. However, the court recently asked the parties to brief the issue of standing in light of the new decision in Spokeo.

The Spokeo case involved a Fair Credit Reporting Act lawsuit filed by Thomas Robins after he found that the data aggregator posted inaccurate information about him. Last year, the Supreme Court ruled that a plaintiff must show a “concrete” injury-in-fact to satisfy Article III and establish standing.

On remand, the Ninth Circuit, in allowing the suit to move forward, held last month that Robins’ allegation by itself, that Spokeo violated the FCRA, was enough to establish a concrete injury.

In light of this decision, the Eichenberger panel asked the parties to brief whether the plaintiff’s allegation that ESPN violated the VPPA was enough, also by itself, to establish the concrete injury necessary to establish standing.

To read the order in Eichenberger v. ESPN, Inc., click here.

Why it matters: As the question of whether a bare statutory violation can support a putative class action lawsuit remains open, an opinion from the Ninth Circuit in the context of the VPPA would be required reading. Consumer groups have spoken out in support of plaintiffs like Robins and Eichenberger, while tech companies and other businesses have concern about the potential for facing class action litigation under statutes like the VPPA brought by a group of consumers who have not suffered any actual harm.



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