Burdette v. fuboTV, Inc.

Filing 24

MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 6/4/2024: Mailed notice(maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NE’TOSHA BURDETTE, on behalf
of herself and all others similarly
situated,
Plaintiff,
v.

Case No. 23 C 10351
Judge Harry D. Leinenweber

FUBOTV INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Ne’Tosha Burdette (“Burdette”) brings a class action complaint against
Defendant FuboTV Inc. (“Fubo”) under the Video Privacy Protection Act (“VPPA”), 18
U.S.C. § 2710, et seq. Fubo moves to dismiss the Complaint under FED. R. CIV. P. 12(b)(6)
for failure to state a claim. For the reasons stated herein, Fubo’s Motion to Dismiss is
denied.
I. BACKGROUND
Plaintiff Burdette’s Complaint alleges the following. Fubo is an online platform for
streaming movies and TV shows, including both prerecorded and live content. Fubo offers
a paid subscription that permits users to pay for access to its content. Fubo uses a
sophisticated tracking technology that collects its subscribers’ personally identifiable
information (“PII”), including information which identifies a person as having viewed
specific videos on Defendant’s streaming service. Fubo discloses consumers’ PII to third

parties for marketing, advertising, and analytics purposes, among other reasons, without
the consent of the subscribers.
Burdette is a paying subscriber to Fubo, and she has accessed video and television
content on the platform. She alleges that, without her consent, Fubo “knowingly and
intentionally disclosed Plaintiff’s PII, including specifically her viewing history, to third
parties and affiliates.” (Dkt. No. 1-1 (“Compl.”) ¶ 34.) Burdette also alleges that Fubo
disclosed “information that could be used to identify her as an individual who has
requested to view a specific video(s)[.]” (Id. ¶ 37.)
Plaintiff brings a class action on her own behalf and on behalf of a nationwide class
for legal and equitable remedies under the VPPA.
II. LEGAL STANDARD
“‘To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide
enough factual information to state a claim to relief that is plausible on its face and raise
a right to relief above the speculative level.’” Elaihor v. Primerica Life Ins. Co., 2023 WL
3947617, at *2 (N.D. Ill. June 12, 2023) (quoting Haywood v. Massage Envy Franchising,

LLC, 887 F.3d 329, 333 (7th Cir. 2018)). “‘While detailed factual allegations are not
necessary to survive a motion to dismiss, [the standard] does require ‘more than mere
labels and conclusions or a formulaic recitation of the elements of a cause of action to be
considered adequate.’” Id., at *2. (quoting Sevugan v. Direct Energy Servs., LLC, 931
F.3d 610, 614 (7th Cir. 2019). “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 (2009).
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III.

ANALYSIS

The VPPA prohibits video tape service providers from knowingly disclosing a
consumer's personal identifiable information — which “includes information which
identifies a person as having requested or obtained specific video materials or services
from a video tape service provider,” § 2710(a)(3) — to any other person without first
obtaining that consumer's informed, written consent. § 2710(b).
Burdette’s consent is not at issue. Rather, Fubo argues the Complaint should be
dismissed for three reasons: (1) Burdette’s Complaint does not sufficiently allege plausible
facts that Fubo unlawfully disclosed her PII to third parties; (2) Burdette failed to allege
that Fubo is a “video tape service provider” as required under the VPPA; and (3) the
“ordinary-course” exception to the VPPA applies and bars Plaintiff’s claim.
The Court will address each in turn.
A. Disclosure of PII
To prevail on a VPPA claim, a plaintiff must be able to show that the defendant
disclosed the specific combination of (a) “the consumer's identity”; (b) “the video
material's identity”; and (c) “the connection between them.” In re Hulu Priv. Litig., 86 F.
Supp. 3d 1090, 1095 (N.D. Cal. 2015). Burdette alleges that Fubo compiles data obtained
from its subscribers, including PII that can be used to identify a person, as well as their
viewing history, and shares it with third-party advertisers. As for Plaintiff-specific
pleadings, Burdette alleges Fubo collected and disclosed to third parties without her
consent both her own identifying information as well as her viewing history. (Compl.
¶ 39.)
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The Complaint cites to Fubo’s privacy policy, which reviews how Fubo collects
users’ information, what kinds of information Fubo may collect, and how Fubo may share
and disclose the information. The policy cited is effective August 30, 2023. Since the
parties do not contest the validity or relevance of the document, the Court considers it in
issuing this ruling. (Viewable at https://legal.fubo.tv/policies/en-US/?name=privacypolicy, last viewed on May 20, 2024). The policy notes that the information Fubo or its
vendors collect includes identifying information such as demographic or profile
information, name, email address, and near-precise geolocation information, and that
Fubo “may share” information such as “certain browsing history or app usage” and
“identification and demographics” as well as “device information for purposes to
“advertising networks and advertisers and other third parties.” (Id.) The Complaint also
cites the 2020, 2021, and 2022 Fubo Annual Reports in which Fubo disclosed that use of
subscriber data to deliver relevant advertising on its platform “place[d] [Fubo] and [their]
content publishers at risk for claims under a number of laws, including but not limited to
the Video Privacy Protection Act (‘VPPA’).” (Compl. ¶ 27.) Also quoted in the Complaint is
a May 2022 press release in which Fubo disclosed it uses “first-party data” to “create
custom audience segments informed by viewership behavior to target users based on the
exact content and amount of time they are watching, anywhere on the platform.”
(Viewable

at

https://ir.fubo.tv/news/news-details/2022/fuboTV-Invites-Brands-to-

Follow-The-Audience-at-2022-IAB NewFronts/default.aspx, last viewed on May 20,
2024).

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Fubo unsuccessfully argues the Complaint fails to allege adequately that Fubo (1)
disclosed information to a third party that would allow an ordinary person to identify
Burdette (2) in connection with Burdette’s viewing history. (Dkt. No. 18 (“Reply”) at 12.) Campos v. Tubi is instructive. 2024 WL 496234 (N.D. Ill. Feb. 8, 2024) (Tharp, J.)
There, plaintiff brought VPPA claims against an online streaming platform, Tubi, alleging
that Tubi discloses PII to third-party advertisers to generate advertising revenue. Judge
Tharp denied Tubi’s Motion to Dismiss, finding that the plaintiff sufficiently alleged Tubi’s
disclosure of PII. The Court relied on several factual allegations and documents “to infer
that Tubi collects users’ data, including individual level viewing history and other PII, for
the purposes of targeting them with ads.” Id. at *8. This combination of factual
allegations and documentary evidence included Tubi’s privacy policy, which, much like
Fubo’s, used conjectural language that Tubi “may collect” relevant information and “may”
share that information to third-party advertisers. Id. The court in Campos also relied on
allegations that Tubi used a “sophisticated tracking technology” to collect PII; a Mozilla
foundation review that “confirm[ed] that Tubi matches third-party data to ‘existing
customers’ to allow advertisers to target specific individuals”; Tubi’s 2023 “Audience
Insight” report which “suggest[ed] that Tubi collects and discloses its subscribers’ viewing
data at multiple points”; and a Tubi press release that implied Tubi partnered with a credit
reporting agency to accumulate even more personal data from its users. Id. at *8.
Fubo distinguishes Campos on the grounds that unlike Fubo’s policy, Tubi’s privacy
policy in Campos went “beyond the conjectural ‘may’ language to affirm that Tubi
discloses the relevant categories of information to others in connection with advertising
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and marketing purposes.” (Dkt. No. 20, Opposition to Notice of Supplemental Authority
at 2) (citing Campos, 2024 WL 496234, at *8). This is true. Tubi’s policy did contain a
section on the California Consumer Privacy Act notice in which it disclosed that it had

affirmatively shared certain relevant categories of information, including PII and device
history, to third party advertisers. It is also true that Fubo’s privacy policy does not contain
such a detailed and affirmative statement regarding which kinds of information it did
share with third parties as opposed to may have shared. But there are a few reasons why
this difference does not foreclose Burdette’s claims.
First, Judge Tharp did not find Tubi’s privacy policy in Campos – including the
section in which it shared exactly which PII it disclosed to advertisers – to be a smoking
gun. Rather, it was just one additional piece of circumstantial evidence that gave rise to
the plausible inference that Tubi shared information with third parties in a “non-VPPAcompliant manner – meaning in a manner that would permit the third party to learn an
individual’s identity and their viewing history.” Campos, at *9 (emphasis added). This is
because nowhere did Tubi’s Privacy Policy “explicitly say that it shares the relevant VPPAPII com bination with third parties.” Id. at *10 (emphasis in original).
Second, while Fubo’s privacy policy does not offer the same degree of specificity
offered in Tubi’s privacy policy, it does go beyond the conjectural “may” language to
affirm that Fubo does in fact disclose subscriber information to third parties. It states:
“[w]e and our vendors on our behalf disclose information we collect from and about you
for the following business and operational purposes listed below.” It also states that “[w]e
disclose information that does not personally identify you (e.g., IP address or a device
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identifier) with information about content you view on the Fubo TV Services to video
measurement services such as Nielsen, as well as other analytics providers.”
The Court disagrees with Fubo that this case is more akin to Nashel v. New York

Times Co. than to Campos v. Tubi, 2022 WL 6775657 (E.D. Mich. Oct. 11, 2022). In
Nashel, the plaintiff alleged Michigan Preservation of Privacy Act (“PPPA”) violations by
the defendant in 2016 based, in part, on the defendant's privacy policy from 2015, which
included conjectural “may” language about disclosing personal information. The court
found the conjectural language did not show that “any information was plausibly
disclosed,” and concluded the allegations were insufficient to state a claim. Id. at *5. The
plaintiff also relied on the existence of two NextMark data cards that predated the relevant
time period by 8 and 9 years, as well as a 2020 research study that implicated the
defendant in a marketing strategy that included the disclosure of email lists. See id. at *1.
Unlike the plaintiff in Nashel, Burdette relies on factual allegations that surpass
conjectural language, outdated data cards, and a case study loosely implicating
defendant. The Privacy Policy permits Fubo to collect and disclose users’ viewing history
and specific individual-identifying information, such as names, demographic information,
and location information. Fubo discloses in a press release that advertisers can “reach
specific fans across any content genre available on fuboTV” based on “exact content and
amount of time they are watching” as well as viewership behavior. While Fubo is right
that this does not state that Fubo is disclosing non-VPPA-compliant PII with certainty, it
adds to the bundle of circumstantial evidence. So too do Fubo’s Annual Reports which

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disclose that “use of subscriber data to deliver relevant advertising” could place Fubo “at
risk for claims under . . . VPPA.”
If Defendant wishes to rely on a Michigan privacy act case, Gottsleben v. Informa

Media, Inc. is a more apt one than Nashel. 2023 WL 4397226 (W.D. Mich. Jul. 7, 2023).
There, the plaintiff successfully stated a claim for improper disclosure of customer
subscription information in part because the Gottsleben defendant’s privacy policy
“indicated that it was disclosing customer information to third parties,” unlike in Nashel.

Id. at *5. The court also relied on defendant’s “news releases touting its development
and marketing of a database of customer information.” Id. Burdette’s Complaint more
closely mirrors the sufficiently pled claim in Gottsleben than that in Nashel because there
is even broader indication that Fubo may have disclosed its customer information to third
parties (see supra).
Fubo also requests this Court adopt the Third Circuit “ordinary person” standard
set out in In re Nickelodeon Consumer Privacy Litig. in which “personally identifiable
information” refers to only that information that would “readily permit an ordinary person
to identify a specific individual’s video-watching behavior.” In re Nickelodeon Consumer

Priv. Litig., 827 F.3d 262, 267 (3d Cir. 2016). Fubo cites no case in this district that
imposes this standard. And while the “ordinary person” standard may “reflect [] the
majority view,” as Fubo argues, the Court is unconvinced that imposing the standard here
would foreclose Burdette’s claim. (Reply at 2.) Fubo’s Privacy Policy states that Fubo
affirmatively collects the following categories of information: “Identifiers (such as name,
address, email address) . . . demographic information (age); location information . . .”
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Information such as name, address, and demographic information would presumably
permit an ordinary person to identify a subscriber. If this identifying information was then
disclosed with that individual’s viewing history, as Plaintiff alleges, such a disclosure would
satisfy the ordinary person standard. In fact, even In re Nickelodeon held that GPS
coordinates alone “contain more power to identify a specific person.” 827 F.3d at 289.
Here, the Annual Reports, the privacy policy, and the press report offer sufficient
circumstantial evidence to infer that Fubo disclosed customer information in a non-VPPAcompliant manner. Cf. In re Text Messaging Antitrust Litig., 630 F.3d 622, 628-29 (7th
Cir. 2010) (“We need not decide whether the circumstantial evidence that we have
summarized is sufficient to compel an inference of conspiracy; the case is just at the
complaint stage and the test for whether to dismiss a case at that stage turns on the
complaint's ‘plausibility.’” (emphasis in original)). Taking those factual allegations as true
and drawing reasonable inferences based on those allegations and the documentary
evidence in Fubo’s favor, the Court finds Burdette’s claim sufficiently alleges that Fubo
disclosed her PII.
B. Video Tape Service Provider
Fubo asserts also that Burdette fails to state a VPPA claim because she did not
allege that Fubo is a “video tape servicer provider,” as required under the VPPA. Fubo’s
logic goes: the VPPA applies only to ‘prerecorded’ video content and does not apply to
‘live’ video content. Fubo provides subscribers with both prerecorded and live video
content. The Complaint did not specify the movies and television Burdette watched were
prerecorded as opposed to live. Thus, Plaintiff fails to state a VPPA claim.
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Fubo’s logic impermissibly elevates the legal standard Burdette must overcome at
the Motion to Dismiss stage. The VPPA defines “video tape service provider” to mean
“any person, engaged in the business, in or affecting interstate or foreign commerce, of
rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual
materials[.]” § 2710 (a)(4). In her Complaint, Burdette states that Fubo is a “video tape
service provider” as defined under the VPPA because it provided “movies and television
shows to subscribers such as Plaintiff[.]” (Compl. ¶ 53). Critically, Burdette alleges that
she herself, along with the other Class members, are “consumers” under the VPPA and
viewed movies and/or television shows through its service. § 2710 (a)(1); (Compl. ¶¶ 52,
54.)
Admittedly, Burdette never spelled out that she watched prerecorded, as opposed
to live materials. This requires an inference be drawn as to which kind of content she
consumed as the basis for her Complaint. Fubo would have the Court draw this inference
in favor of Defendant. But fortunately for Burdette, inferences at the Motion to Dismiss
stage are to be drawn in the favor of Plaintiff. Allen v. Brown Advisory, LLC, 41 F.4th 843,
850 (7th Cir. 2022). Given the surge in consumer preference for prerecorded content
over live content in the recent decade, this is an entirely plausible scenario. Fubo’s motion
fails on this ground.
C. “Ordinary-Course” Exception
Finally, Fubo asserts that even if the Complaint sufficiently alleged that Fubo
disclosed Plaintiff’s PII to third parties and is a video tape service provider, the VPPA’s
“ordinary course” exception would bar her claim. The VPPA carves an exception for
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disclosures that are “incident to the ordinary course of business of the video tape service
provider,” including “order fulfillment” and “request processing.” § 2710(a)(2), (b)(2)(E).
In support of its argument that “VPPA’s legislative history strongly suggests that
marketing to customers was one purpose Congress intended to encompass in the
exceptions,” Fubo cites to the same 1988 Senate Judiciary Report the Seventh Circuit
rejected in Sterk v. RedBox Automated Retail, LLC, 770 F.3d 618, 623-35 (7th Cir. 2014).

See S. Rep. No. 100-599, at 12-14 (1988), as reprinted in 1988 U.S.C.C.A.N. 4342-1,
4342-11, 12. The cited Senate Report reads:
This subsection takes into account that video tape service providers
may use third parties in their business operations. For example, debt
collection is often conducted by third parties, with disclosure of credit
histories made to third party credit bureaus. Debt collection is subject
to other Federal laws: disclosures for that purpose continue to be
governed by those laws.
This subsection also allows disclosure to permit video tape service
providers to use mailing houses, warehouses, computer services, and
similar companies for marketing to their customers. These practices
are called “order fulfillment” and “request processing.”
The Seventh Circuit in Sterk found this argument not only “self-serving,” but also
saw little persuasive value in the “ambiguous committee report.” Sterk, 770 F.3d at 624.
As targeted marketing and advertising analytics have only ballooned in complexity and
pervasiveness in the decade since Sterk, the reasoning in Sterk is that much more on
point today: “order fulfillment” and “request processing” cannot reasonably be
synonymous with marketing activities. Burdette cites in a supplemental authority

Saunders v. Hearst Television, Inc., which holds that “advertising” does not fall within the
VPPA’s “ordinary course of business” exception. 2024 WL 126186 (D. Mass. Jan. 11,
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2024). Fubo dismisses Saunders as “incorrect and non-binding.” (Dkt. No. 22, Opposition
to Supplemental Authority at 2.) Without authority holding otherwise, the Court need only
follow suit with the Seventh Circuit in Sterk to find that advertising does not fall within
VPPA’s “ordinary course of business” exception.
IV. CONCLUSION
For the reasons stated herein, the Court DENIES Defendant’s Motion to Dismiss.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 6/4/2024

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