Austin-Spearman v. AMC Network Entertainment LLC et al
Filing
30
MEMORANDUM AND ORDER. For the reasons in this Memorandum and Order, AMC's motion to dismiss is granted, but Austin-Spearman is granted leave to amend. This Memorandum and Order resolves Docket No. 17. Granting 17 MOTION to Dismiss the Complaint. Document filed by AMC Network Entertainment LLC, AMC Networks, Inc. (Signed by Judge Naomi Reice Buchwald on 4/7/2015) Copies Mailed By Chambers. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
ETHEL AUSTIN-SPEARMAN, individually
and on behalf of all others
similarly situated,
MEMORANDUM AND ORDER
Plaintiff,
- against -
14 Civ. 6840 (NRB)
AMC NETWORK ENTERTAINMENT LLC, and
AMC NETWORKS, INC.,
Defendants.
----------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff
commenced
Ethel
this
action
Austin-Spearman
against
(“Austin-Spearman”)
defendants
AMC
Network
Entertainment, LLC, and AMC Networks, Inc. (collectively, “AMC”),
alleging that AMC disclosed her personal information in violation
of the Video Privacy Protection Act, 18 U.S.C. § 2710.
AMC moved
to dismiss the complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
motion
(and
presumably
Following oral argument on this
anticipating
this
decision),
Austin-
Spearman requested leave to amend the complaint to add new factual
allegations.
The proposed amendment adds an additional piece of
information but leaves intact the Court’s analysis of the original
complaint. For the reasons stated herein, AMC’s motion is granted,
but Austin-Spearman is granted to leave to amend.
BACKGROUND
AMC maintains a website that provides information about its
television programming, on which it offers video clips and episodes
of many of its television shows.
Cmplt. ¶ 11.
Web users may
access the website’s content either as a guest or by using an
existing
providers.
online
account
with
participating
cable
television
Id. ¶ 12.
AMC’s website also incorporates a software development kit
(“SDK”) provided by Facebook. Id. ¶ 23. This SDK allows companies
to add Facebook-related features to their websites: for instance,
sites can include a “Facebook Login,” which lets visitors log into
a website using their Facebook credentials, or a “Facebook Social
Plugin,” which lets visitors use Facebook’s “Like,” “Share,” and
“Comment” functions.
Id. ¶ 15.
To make use of this SDK, a company
will add Facebook’s source code to its website and then customize
that code.
Id. ¶ 17.
Notably, the Facebook SDK relies in part on cookies.
18.
Id. ¶
In particular, through its “c_user” cookie, Facebook’s code
allegedly forces a user’s web browser to look for the user’s
Facebook ID.1
Meanwhile, if a person has chosen to remain logged
into Facebook by checking the “keep me logged in” button on
1
According to Austin-Spearman, this ID (a unique numeric string assigned to a
particular Facebook account) “may be inputted into a web browser to view an
individual’s ‘profile’ page, thus making it a personal identifier.” Id. ¶
19.
2
Facebook’s
homepage,
this
“c_user”
cookie
will
continue
to
operate, regardless of what the user does with the web browser.
Id. ¶ 20.
If a person then visits a webpage (such as AMC’s) that
includes Facebook’s SDK, Austin-Spearman asserts, “data about the
user’s web browsing may be silently transmitted back to Facebook.”
Id. ¶ 21.
Specifically, Austin-Spearman alleges that when a user
clicks on a hyperlink on AMC’s webpage (for example, to view a
video clip), Facebook’s SDK “initiates a transmission to Facebook
called
‘/plugins/like.php?’
which
contains
values
from
‘c_user’ cookie and full URL of the video’s webpage.”
the
Id. ¶ 24.
“As a result of these data transmissions, Facebook receives a full
record of: (i) the Facebook ID of the visitor browsing AMC’s
website, along with (ii) the exact titles of the audiovisual
material (i.e. the video clips) that they viewed.”
Id. ¶ 26.
Austin-Spearman has been a member of Facebook since 2007 and
remains logged in through her web browser.
Id. ¶ 36.
Since 2013,
she has been visiting the AMC website to, among other things, watch
video clips from AMC’s The Walking Dead.
Id. ¶ 37.
She alleges
that as she viewed these video clips, AMC disclosed her Facebook
ID and the titles of the videos she viewed to Facebook.
Id. ¶ 40.
Austin-Spearman filed the present complaint on August 22,
2014.
The complaint, a putative class action, contains one cause
of action under the Video Privacy Protection Act (“VPPA”), 18
U.S.C. § 2710.
The VPPA provides that “[a] video tape service
3
provider
who
knowingly
discloses,
to
any
person,
personally
identifiable information concerning any consumer of such provider
shall be liable to the aggrieved person for the relief provided in
subsection (d),” 18 U.S.C. § 2710(b)(1), and it specifies that
“the term ‘consumer’ means any renter, purchaser, or subscriber of
goods or services from a video tape service provider.”
2710(a)(1).
Id. §
AMC moved to dismiss the complaint on October 23,
2014, raising two arguments in support of the motion: first, that
Austin-Spearman
lacks
Article
III
standing,
and
second,
that
Austin-Spearman does not constitute a “subscriber” under the VPPA.
The motion was fully briefed on December 22, 2014, and oral
argument was held on March 25, 2015.
As noted earlier, after oral argument, on March 27, 2015,
Austin-Spearman submitted a letter requesting leave to amend the
complaint to add new factual allegations in the event the Court
otherwise deemed her complaint inadequate. Below, we address AMC’s
motion to dismiss the complaint as pled and Austin-Spearman’s
request for leave to amend in turn.
4
DISCUSSION
I.
Motion to Dismiss - Legal Standard
“To survive a motion to dismiss for lack of subject-matter
jurisdiction based on standing pursuant to Rule 12(b)(1), the
plaintiff ‘must allege facts that affirmatively and plausibly
suggest that it has standing to sue.’”
Ass'n,
Inc.
v.
UnitedHealth
Grp.,
New York State Psychiatric
980
F.
Supp.
2d
527,
533
(S.D.N.Y. 2013) (quoting Amidax Trading Grp. V. S.W.I.F.T. SCRL,
671 F.3d 140, 145 (2d Cir. 2011)).
Where the defendants place
jurisdictional facts in dispute, the court may properly consider
“evidence relevant to the jurisdictional question [that] is before
the court.”
Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140 (2d
Cir. 2001).
However, if the defendants challenge only the legal
sufficiency of the jurisdictional allegations, “the court must
take all facts alleged in the complaint as true and draw all
reasonable inferences in favor of plaintiff.”
Id.
Similarly, a court ruling on a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in plaintiff’s favor.
Harris v. Mills, 572 F.3d 66, 71
(2d Cir. 2009); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d
229, 237 (2d Cir. 2007).
A motion to dismiss may be granted only
where “it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
5
relief.”
Still v. DeBuono, 101 F.3d 888, 891 (2d. Cir. 1996).
Nevertheless, a plaintiff’s “[f]actual allegations must be enough
to raise a right of relief above the speculative level.”
Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
Thus, a plaintiff must allege
“enough facts to state a claim to relief that is plausible on its
face.”
Twombly, 550 U.S. at 570.
If a plaintiff “ha[s] not nudged
[his] claims across the line from conceivable to plausible, [his]
complaint must be dismissed.”
Id.
This pleading standard applies
in “all civil actions.” Iqbal, 556 U.S. at 684 (internal quotation
marks omitted).
II.
Motion to Dismiss - Analysis
A. Article III Standing
AMC first seeks dismissal of the complaint on the ground that
Austin-Spearman lacks standing under Article III to assert her
current claims.
To establish Article III standing, a plaintiff
bears the burden of establishing that she has suffered (1) “an
injury in fact, which is an invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical;” (2) “a causal
connection between the injury and the conduct complained of;” and
(3) “a likelihood, as opposed to mere speculation, that the injury
6
will be redressed by a favorable decision.”
Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992).
Here, AMC argues that Austin-Spearman has failed to establish
standing because she has failed to allege an “injury in fact”
sufficient to satisfy Article III.
According to AMC, Congress
cannot create injury and thereby confer constitutional standing
“by simply enacting a statute that creates legal obligations to an
individual.” Def’s Br. at 7. As a result, they assert, a plaintiff
seeking relief under a statute must plead an injury beyond the
statutory
violation--i.e.,
in
the
context
of
the
VPPA,
harm
resulting from disclosure rather than simply disclosure itself-in order to have alleged a constitutionally cognizable injury.
Austin-Spearman,
who
has
claimed
as
harm
only
disclosure
in
violation of the statute, would thus have no standing to bring the
present action.
AMC’s
argument,
however,
fundamentally
underestimates
Congress’s ability to confer standing through statutory enactment.
It is true, as AMC proclaims, that Congress “cannot erase Article
III’s standing requirements by statutorily granting the right to
sue to a plaintiff who would not otherwise have standing.”
Def’s
Br. at 7 (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)).
Nevertheless, while Congress cannot confer standing in the absence
of an injury, it can “broaden the injuries that can support
constitutional
standing,”
Donoghue
7
v.
Bulldog
Investors
Gen.
P'ship, 696 F.3d 170, 179 (2d Cir. 2012), by “creating legal
rights, the invasion of which creates standing,” id. at 175
(quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)).
See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992)
(“Statutory broadening of the categories of injuries that may be
alleged
in
support
of
standing
is
a
different
matter
from
abandoning the requirement that the party seeking review must
himself have suffered an injury.”)(internal quotation marks and
brackets
omitted).
Thus,
in
evaluating
whether
a
plaintiff
alleging a statutory violation has standing, the relevant question
is not whether the plaintiff has alleged injury beyond violation
of the statute, but rather “whether the constitutional or statutory
provision on which the claim rests properly can be understood as
granting persons in the plaintiff’s position a right to judicial
relief.”
Warth v. Seldin, 422 U.S. 490, 500 (1975).
The VPPA plainly provides those, like Austin-Spearman, who
allege wrongful disclosure even without additional injury a right
to relief.
By affording redress to “aggrieved” “consumers” and
providing that “consumers” become “aggrieved” purely as a result
of disclosures made in violation of the statute, the VPPA makes
clear that such disclosures alone work an injury deserving of
judicial relief.
See In re Hulu Privacy Litig., No. C 11-03764
LB, 2013 WL 6773794, at *5 (N.D. Cal. Dec. 20, 2013) (holding that
“the
VPPA
requires
only
injury
8
in
the
form
of
a
wrongful
disclosure” because “[t]he consumer . . . is ‘aggrieved’ based
solely on the disclosure of personally identifiable information to
third parties,” “which demonstrates an injury in-fact for Article
III standing purposes”).
In essence, the VPPA creates a right to
the privacy of one’s video-watching history, the deprivation of
which--through wrongful disclosure, or statutory violation, alone-constitutes an injury sufficient to confer Article III standing.
Notably, every court to have addressed this question has
reached the same conclusion, affirming that the VPPA establishes
a
privacy
right
deprivation.
770
F.3d
sufficient
to
confer
standing
through
its
See, e.g., Sterk v. Redbox Automated Retail, LLC,
618,
623
(7th
Cir.
2014)
(“Redbox
characterizes
plaintiffs' claim as an allegation that Redbox committed a ‘mere
technical
violation’
of
the
statute,
insufficient to establish standing.
which
Redbox
argues
is
But ‘technical’ violations of
the statute (i.e., impermissible disclosures of one's sensitive,
personal
information)
are
precisely
what
Congress
sought
to
illegalize by enacting the VPPA. . . . By alleging that Redbox
disclosed their personal information in violation of the VPPA,
Sterk and Chung have met their burden of demonstrating that they
suffered
an
injury
in
fact
that
success
in
this
suit
would
redress.”) (emphasis added) (internal citations omitted); In re
Hulu Privacy Litig., 2013 WL 6773794 at *5; In re Nickelodeon
Consumer Privacy Litig., No. CIV.A. 12-07829, 2014 WL 3012873, at
9
*3-4 (D.N.J. July 2, 2014); Ellis v. Cartoon Network, Inc., No.
1:14-CV-484-TWT, 2014 WL 5023535, at *2 (N.D. Ga. Oct. 8, 2014).
By contrast, AMC’s attempts to devise an additional pleading
requirement, and particularly to suggest that such a pleading
requirement is compelled by the Second Circuit’s decision in
Kendall v. Employees Ret. Plan of Avon Products, 561 F.3d 112 (2d
Cir. 2009), are unavailing.
In Kendall, the plaintiff alleged
that the defendant owed a fiduciary duty to execute a pension plan
that complied with ERISA and that, in violating ERISA, it had
breached this fiduciary duty to her, thereby causing her cognizable
injury in fact.
the
ERISA
The court, however, disagreed, holding that while
statute
does
impose
a
general
fiduciary
duty
of
compliance, “it does not confer a right to every plan participant
to sue the plan fiduciary for alleged ERISA violations without a
showing that they were injured by the alleged breach of the duty.”
Id. at 120. AMC asks us to construe this decision broadly, arguing
that it stands for the expansive proposition that allegations of
statutory violations without allegations of additional injury are
insufficient to prove standing in the Second Circuit.
However, in
rejecting the plaintiff’s claim, the Kendall court did not reject
the principle that Congress can create a legal right, the violation
of which alone confers standing; rather, it held simply that the
Kendall plaintiff had not alleged an injury sufficient for standing
because she had alleged only deprivation of her right to a plan
10
that
complied
with
ERISA,
which,
it
found,
conferred to her under the ERISA statute.
was
not
a
right
As a result, Kendall
does not stand for the broad proposition that a statutory violation
cannot confer standing without further injury, but rather requires
that plaintiffs allege the specific rights that any statutory
violation has infringed.
Pl’s Br. at 11.
That the Second Circuit does not as a rule require allegations
of injury beyond statutory violation is further evidenced by its
decision in Donoghue v. Bulldog Investors Gen. P'ship, 696 F.3d
170 (2d Cir. 2012).
defendants
had
Finding plaintiff’s allegations that the
violated
Section
16(b)
of
the
Exchange
Act
sufficient to afford her standing, the Donoghue court maintained
that where a statute creates a specific legal right--there, “one
that ma[de] 10% beneficial owners ‘constructive trustee[s] of the
corporation,’ with a fiduciary duty not to engage in short-swing
trading of the issuer's stock at the risk of having to remit to
the issuer any profits realized from such trading”--deprivation of
that right through statutory violation alone suffices for injury
warranting standing.
See 696 F.3d at 177, 179 (“While this
particular legal right might not have existed but for the enactment
of § 16(b),” “[t]he deprivation of this right establishes Article
III standing.”).
Moreover, the Donoghue court specifically noted
that “this case is distinguishable from Kendall” because, unlike
Kendall’s
breach
of
fiduciary
11
duty
claim,
“the
fiduciary
obligation created by § 16(b) is not general, but rather confers
a specific right on issuers.”
Id. at 178.
Its endorsement of
Kendall as requiring only that “a plaintiff [asserting standing]
allege some injury or deprivation of a specific right,” id.
(emphasis added) (internal quotation marks and citations omitted),
confirms that, in the Second Circuit, a plaintiff need not allege
injury beyond statutory violation so long as the statute at issue
bestows on the plaintiff a clear legal right.2
Thus, because the VPPA creates a specific right to relief for
disclosures made in violation of the statute, a plaintiff asserting
claims under the VPPA need only assert that her information was
wrongfully
disclosed
to
have
asserted
supporting Article III standing.
an
“injury
in
fact”
Austin-Spearman’s allegations
that AMC disclosed her personal information in violation of the
VPPA, without more, therefore suffice to establish her standing to
bring the present claims.
2
The possibility of standing for claims based purely on statutory violations
is further supported by Donoghue’s treatment of Edwards v. First American Corp.,
610 F.3d 514 (9th Cir. 2010). In Edwards, the Ninth Circuit upheld a plaintiff's
standing to sue under the Real Estate Settlement Procedures Act (“RESPA”) to
recover three times the amount of any charge paid for real estate settlement
services provided in violation of RESPA, even though the plaintiff did not and
could not allege that the charges were higher than they would have been but for
the violation. Because the court construed RESPA as conferring a legal right
to recovery without regard to an overcharge, the Ninth Circuit held that the
plaintiff had alleged Article III injury. The Second Circuit in Donoghue cited
Edwards approvingly, noting that “[i]n light of the Supreme Court's dismissal
of its writ of certiorari, see – U.S. –, 132 S. Ct. 2536, 183 L.Ed.2d 611 (2012)
(dismissing writ as improvidently granted), Edwards remains good law in the
Ninth Circuit, and has been cited approvingly in our own.” Donoghue, 696 F.3d
at 179.
12
B. Subscribers under the VPPA
Having found that Austin-Spearman has standing to bring the
present action, we nevertheless dismiss her claims because we find
that she does not qualify as a “consumer,” and therefore fails to
state a claim, under the VPPA.
The VPPA vindicates the rights of the “consumer,” a term it
defines to include “any renter, purchaser, or subscriber of goods
or services from a video tape service provider.” 18 U.S.C. §
2710(a)(1).
As there has been no argument that Austin-Spearman
constitutes either a “renter” or “purchaser” of AMC’s services, we
evaluate below whether she can nevertheless lay claim to the VPPA’s
protections through designation as a “subscriber”--a term given no
further definition in the statute.
In light of the term’s plain
meaning and its treatment in prior cases, we conclude that AustinSpearman’s allegations fail to establish a relationship with AMC
sufficient to characterize her as a “subscriber” of AMC’s goods or
services.
To ascertain the scope of undefined terms in a statute, we
“necessarily begin[] with the plain meaning of a law’s text and,
absent ambiguity, will generally end there.” Dobrova v. Holder,
607 F.3d 297, 301 (2d Cir. 2010) (quoting Bustamante v. Napolitano,
582 F.3d 403, 406 (2d Cir. 2009)). First and foremost, this “plain
meaning [is] extrapolated by giving words their ordinary sense.”
Natural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d
13
Cir. 2001).
See also, e.g., BP Am. Prod. Co. v. Burton, 549 U.S.
84, 91 (2006) (“Unless otherwise defined, statutory terms are
generally
interpreted
in
accordance
with
their
ordinary
meaning.”); Garcia v. Teitler, 443 F.3d 202, 207 (2d Cir. 2006)
(“It is a basic rule of statutory construction that a court begin
with ‘the plain and ordinary meaning of statutory terms.’”).
Given
the
allegations
in
the
complaint,
Austin-Spearman
cannot claim classification as a “subscriber” as that term is
ordinarily understood.
Conventionally, “subscription” entails an
exchange between subscriber and provider whereby the subscriber
imparts money and/or personal information in order to receive a
future and recurrent benefit, whether that benefit comprises, for
instance, periodical magazines, club membership, cable services,
or email updates.
See, e.g., Subscriber Definition, OED.com,
http://www.oed.com/view/Entry/192954?redirectedFrom=subscriber#e
id (last visited March 25, 2015) (“A person who makes a regular
payment
in
membership
return
of
a
for
entitlement
society,
access
to
to
a
receive
a
periodical,
commercially
provided
service.”); id. (“A person who adds his or her details to an
electronic newsgroup, mailing list, etc., in order to receive, or
contribute to, its contents . . . .”); Subscription Definition,
Merriam-Webster.com,
http://www.merriamwebster.com/dictionary/
subscription (last visited March 25, 2015) (“[A]n arrangement for
providing, receiving, or making use of something of a continuing
14
or periodic nature on a prepayment plan.”); id. (providing as
examples of usage, “Subscribe today and get your first issue free!”
and “You'll receive a user name and password when you subscribe.”).
Whatever the nature of the specific exchange, what remains is
the
subscriber’s
provider:
whether
deliberate
or
not
and
durable
for
affiliation
payment,
these
with
the
arrangements
necessarily require some sort of ongoing relationship between
provider and subscriber, one generally undertaken in advance and
by affirmative action on the part of the subscriber, so as to
supply
the
provider
with
sufficient
personal
information
to
establish the relationship and exchange.3
Austin-Spearman,
relationship
with
AMC
however,
in
her
does
not
complaint.
claim
any
According
to
such
the
complaint, she did not pay AMC for the content on its free website,
nor did she “sign up,” register for an account, establish a user
ID or profile, download an app or program, or take any action to
associate herself with AMC.
Her visits to AMC’s website to view
various videos--visits that, AMC notes, Austin-Spearman does not
allege were regular or even periodic--evince no desire to forge
3
Indeed, even older or less common usages of “subscription” turn on the
subscriber’s intentional association with the thing subscribed to,
reinforcing that such affirmative affiliation--notably absent here--is at the
core of the term’s meaning. See Subscribe Definition, Merriam-Webster.com,
http://www.merriamwebster.com/dictionary/subscribe (last visited March 25,
2015) (listing as definitions “to write (one’s name) underneath,” “to sign
(as a document) with one’s own hand in token of consent or obligation,” “to
attest by signing,” and “to assent to; support”).
15
ties with, and need not have in any way tied her to, AMC; as AMC
observes, Austin-Spearman “can decide to never visit the AMC
website ever again--and that decision will have zero consequences,
costs, or further obligations.”
Def’s Br. at 13.
Such casual
consumption of web content, without any attempt to affiliate with
or
connect
to
the
provider,
exhibits
none
of
the
critical
characteristics of “subscription” and therefore does not suffice
to render Austin-Spearman a “subscriber” of AMC.
Exclusion of Austin-Spearman from the “subscribers” intended
by the statute is also supported by the two cases to have thus far
considered the meaning of the term.
In In re Hulu Privacy Litig.,
No. C 11-03764 LB, 2012 WL 3282960 (N.D. Cal. Aug. 10, 2012), the
court found plaintiffs to be subscribers where they “signed up for
a Hulu account [to watch videos], became registered users, received
a Hulu ID, established Hulu profiles, and used Hulu’s video
streaming services,” at which point “Hulu gave [a third party]
Plaintiffs’ ‘Hulu profile identifiers’ linked to their ‘individual
Hulu
profile
pages
that
included
name,
location
preference
information designated by the user as private, and Hulu username.”4
4
We note that the Hulu court, while finding that plaintiffs constituted
“subscribers” under the VPPA, recently granted summary judgment to Hulu on
the ground that“there is no evidence that Hulu knew that Facebook might
combine a Facebook user’s identity (contained in the c_user cookie) with the
watch-page address to yield ‘personally identifiable information’ under the
VPPA,” and therefore “no proof that Hulu knowingly disclosed any user ‘as
having requested or obtained specific video materials or services’” as
required by the VPPA. In re Hulu Privacy Litigation, 11-03764 (LB), slip op.
at 10 (N.D. Cal. Mar. 31, 2015).
16
Similarly, in Ellis v. Cartoon Network, Inc., No. 1:14-CV-484-TWT,
2014 WL 5023535 (N.D. Ga. Oct. 8, 2014), the court found the
plaintiff’s allegations that he “downloaded the [Cartoon Network]
App and used it to watch video clips,” necessarily tying himself
to the provider by incorporating its program into his device,
sufficient to allege subscription.
Thus, despite disparities in
their manner of association with the provider, in both cases
plaintiffs engaged in an ongoing relationship with the provider
initiated by the plaintiffs’ own actions.
Thus, these two cases
affirm that this relationship stands at the core of the definition
of “subscriber” under the VPPA--and that Austin-Spearman’s failure
to allege such a relationship is ultimately fatal to her claim.
The definition advanced by Austin-Spearman, on the other
hand, lacks any meaningful limitation.
Austin-Spearman argues
that the threshold for subscription under both the statute and the
existing case law is merely “plead[ing] more than simply visiting
a website,” and that such a threshold was met here by her use of
AMC’s
streaming
services:
according
to
Austin-Spearman,
such
“activity on the website provided Defendants with access to the
cookies installed on her computer, which Defendants’ source code
thereafter used to collect and transmit information about her
website activity.”
Pl’s Br. at 16.
In essence, then, Austin-
Spearman suggests that so long as the provider has been able to
access a user’s information, the protections of the VPPA should
17
apply, and whatever the user has done to enable such access (here,
simply browsing while logged onto Facebook) is thereby sufficient
to render her a subscriber.
Such a definition, however, sweeps so
broadly as to be effectively limitless: by essentially turning
“subscription” into a mere proxy for whether the provider has
received access to personal information, this definition all but
writes
out
the
statute’s
limitation
to
“consumers,”
as
the
requirement that the provider have disclosed personal information
necessarily presupposes that it gained access to such information,
therefore rendering the “consumer” clause superfluous.
As “[i]t
is well-settled that courts should avoid statutory interpretations
that render provisions superfluous,” we reject this reading.5
State St. Bank & Trust Co. v. Salovaara, 326 F.3d 130, 139 (2d
Cir. 2003) (“‘It is our duty to give effect, if possible, to every
clause and word of a statute.’”) (quoting Duncan v. Walker, 533
U.S. 167, 174 (2001)).
Rather, an individual must do more than
simply take advantage of a provided service--even if doing so alone
5
Plaintiff’s suggestion that such an expansive definition is necessary to
further the statute’s aims in light of technological advancements unimagined
at the time of enactment, and to afford protection to plaintiffs who would
have been intended had such technology then existed, is likewise unavailing.
This argument ignores the fact that comparable situations, in which an
individual used services and, in so doing, granted a provider access to her
personal information, but would not have been considered a “subscriber,”
existed even in 1988. For example, an individual who watched (but did not
check out) a video at a library after leaving an ID card at the front desk as
security, or an individual who attended a free showing of a film but was
asked to sign in at the entrance would, like Austin-Spearman, have interacted
with the provider in such a way as to enable the provider to make disclosures
in violation of the VPPA, but would not have fallen under the ordinary
definition of “subscriber” at the time.
18
allows a provider to access her information--in order to have acted
as a “subscriber” of the provider.
Consequently, we find that Austin-Spearman has not alleged a
relationship with AMC sufficient to render her a “consumer,” and
we therefore dismiss her complaint for failure to state a cause of
action under the VPPA.
C. Leave to Amend
In a letter dated March 27, 2015, Austin-Spearman informed
the Court of a fact she deems relevant to her classification as a
“subscriber” which, although evidently known at the time she filed
her opposition papers, was inexplicably not shared with the Court
or the defendant either during briefing or at oral argument.
Specifically, Austin-Spearman now claims that she “registered for
AMC’s newsletter as it relates to the Walking Dead TV show,
providing
certain
personal
information,
including
her
email
address,” and that she subsequently received promotional emails
regarding the show, including a link to “unsubscribe” should she
choose to do so.
Pl’s 3/27 Ltr. at 1.
Having failed to plead any
of these details in her complaint, Austin-Spearman now requests
that we grant her leave to amend to add these new allegations
rather than dismiss her complaint with prejudice.
Regrettably, as the law regarding leave to amend is very
forgiving, see Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d
Cir. 2002) (“Leave to amend should be freely granted [unless] there
19
is a good reason for [denying] it, such as futility, bad faith,
undue delay, or undue prejudice to the opposing party”), we must
grant Austin-Spearman’s request. Nevertheless, we do so with great
reluctance, not only because it is beyond comprehension that such
information should only be disclosed after both full briefing and
oral argument on the present motion to dismiss, thereby wasting
both the Court’s and defendants’ time and resources, but also
because we remain skeptical that Austin-Spearman will be able to
state a claim even after amendment.
In particular, we note that
Austin-Spearman’s proposed amendment raises a host of troubling
questions and implications, such as: whether a plaintiff can
constitute a subscriber under the VPPA if she subscribes only to
a portion of the provider’s services that are distinct and set
apart from its provision of videos; whether it is reasonable to
read the statute as creating liability for a provider which itself
collects
data
only
from
that
distinct,
non-video-related
subscription; whether, if plaintiff can be deemed a subscriber
purely on the basis of her newsletter subscription, she has
consented to the privacy policy that one must accept before
subscribing to AMC’s newsletter, which makes it clear that AMC
will collect data and allow third-party cookies; and whether such
consent would serve to preclude her claims.
proposed
factual
allegation
raises
an
Thus, while the
additional
issue
which
should considered in evaluating whether she can now be deemed a
20
"subscriber"
and
therefore
cannot
be
dismissed
as
futile,
it
remains far from apparent that Austin-Spearman will ultimately be
able to satisfy this or the numerous other requirements under the
statute.
We therefore reluctantly grant Austin-Spearman's request
for leave to amend.
CONCLUSION
For the aforementioned reasons,
granted,
AMC's motion to dismiss is
but Austin-Spearman is granted leave
to amend.
This
Memorandum and Order resolves Docket No. 17.
SO ORDERED.
Dated:
New York, New York
April 7, 2015
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
21
Copies of the foregoing Memorandum & Order have been mailed on
this date to the following:
Attorneys for Lead Plaintiff
Matthew Wurgaft, Esq.
Kravis & File, P.C.
1 Meadowlands Plaza, Suite 200
East Rutherford, NY 07073
Rafey S. Balabanian, Esq.
Benjamin S. Thomassen, Esq.
Alicia E. Hwang, Esq.
Edelson PC
350 North LaSalle Street, Suite 1300
Chicago, IL 60655
Attorneys for Defendants
Sandra D. Hauser, Esq.
Natalie J. Spears, Esq.
Dentons US LLP
1221 Avenue of the Americas
New York, NY 10020
22
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