1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 DANIEL RODRIGUEZ, 8 Plaintiff, No. C 11-4084 PJH 9 v. ORDER GRANTING MOTION TO DISMISS 11 For the Northern District of California United States District Court 10 SONY COMPUTER ENTERTAINMENT AMERICA LLC, et al., 12 Defendants. _______________________________/ 13 14 Defendants� motion to dismiss plaintiff�s first amended class action complaint came 15 on for hearing before this court on April 18, 2012. Plaintiff Daniel Rodriguez (�plaintiff�) 16 appeared through his counsel, Rafey Balabanian and Ari Scharg. Defendants Sony 17 Computer Entertainment America LLC (�SCEA�) and Sony Network Entertainment 18 International LLC (�SNEI�) (collectively �defendants�) appeared through their counsel, 19 Michael Rhodes and Ray Sardo. Having read all the papers submitted and carefully 20 considered the relevant legal authority, the court hereby GRANTS defendants� motion, for 21 the reasons stated at the hearing, and summarized as follows: 22 1. To the extent plaintiff�s claim under the Video Privacy Protection Act (�VPPA), 23 see 18 U.S.C. § 2710, is premised on a claim for unlawful retention of plaintiff�s personally 24 identifiable information (�PII�), the VPPA precludes claims premised solely on a defendant�s 25 allegedly unauthorized �retention� of information. See, e.g., Sterk v. Redbox Automated 26 Retail, LLC, 672 F.3d 535 (7th Cir. 2012)(holding that plaintiff may only sue for damages 27 under the VPPA for unlawful �disclosure� of PII, not for the purportedly unlawful �retention� 28 of PII). Thus, defendants� motion to dismiss plaintiff�s �retention� claim under the VPPA is 1 2 GRANTED, and such a claim is DISMISSED, with prejudice. 2. Plaintiff�s remaining claim for unlawful disclosure under the VPPA also fails to 3 state a viable claim for relief. Plaintiff�s claim is premised on two alleged disclosures: (a) an 4 allegedly unauthorized disclosure made by SCEA to SNEI in connection with the transfer of 5 certain SCEA�s assets to SNEI; and (b) an allegedly unauthorized disclosure to DOE 6 defendants that subsequently took place in connection with SNEI�s use and/or disclosure of 7 plaintiff�s PII for marketing and advertising purposes. See FAC, ¶¶ 45-46, 63, 73-74. As to 8 the former disclosure, however, the VPPA expressly permits video tape service �providers� 9 to disclose a consumer�s PII �if the disclosure is incident to the ordinary course of business of� the provider, with �ordinary course of business� further being defined as a �transfer of 11 For the Northern District of California United States District Court 10 ownership.� See 18 U.S.C. § 2710(a)(2); id. at § 2710(b)(2)(E). Thus, plaintiff�s allegation 12 that SCEA unlawfully disclosed plaintiff�s PII to SNEI in connection with SCEA�s transfer to 13 SNEI, is not actionable and fails to state a claim under the VPPA. 14 As to the latter disclosure premised on the purportedly unlawful disclosure of 15 plaintiff�s PII to DOE defendants, plaintiff�s allegations fail to state that a disclosure has 16 affirmatively taken place, identify with particularity the person(s) or entity to whom such 17 disclosure was made, or state that any such disclosure falls outside the scope of 18 disclosures permitted under the VPPA. See FAC, ¶¶ 2, 12, 48, 71, 73. Accordingly, 19 plaintiff has failed to adequately allege sufficient facts to state a claim for unlawful 20 disclosure to DOEs under the VPPA. 21 For the foregoing reasons, defendants� motion to dismiss plaintiff�s claim for unlawful 22 disclosure under the VPPA is also GRANTED. The dismissal is with prejudice, to the 23 extent premised on plaintiff�s claim for unlawful disclosure incident to the transfer of 24 ownership between SCEA and SNEI. The dismissal is with leave to amend as to plaintiff�s 25 claim for unlawful disclosure to DOE defendants, so that plaintiff may cure the specific 26 deficiencies highlighted above. 27 3. Defendants� corresponding request for judicial notice is GRANTED, to the 28 2 1 extent defendants request that the court take judicial notice of the complete version of 2 SNEI�s Privacy Policy, as referenced specifically at paragraphs 45 and 48 of the FAC. The 3 request is DENIED, to the extent defendants seek judicial notice of versions of the Privacy 4 Policy not specifically referenced in the FAC; or of the PSN Terms of Service and User 5 Agreement, since this document is not referenced in the complaint. 6 7 Plaintiff�s amended complaint shall be due no later than May 16, 2012. Defendants� response thereto shall be due no later than June 6, 2012. 8 IT IS SO ORDERED. 10 Dated: April 20, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 11 For the Northern District of California United States District Court 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3