NBCU, Peacock Move to Dismiss for Failure to Plead 'Actionable' VPPA Claim

The Oct. 26 privacy class action alleging that software development kits in NBCUniversal apps allow app and website developers to “surreptitiously collect” and transmit data to third parties (see 2310270060) is “replete with technical jargon” and full of allegations about apps that the plaintiffs don’t allege “they ever used,” said NBCU and Peacock TV in their motion to dismiss Friday (docket 1:23-cv-09433) in U.S. District Court for Southern New York in Manhattan.

Despite all the “bluster,” what the complaint doesn’t do is plead an actionable Video Privacy Protection Act claim against NBCU or Peacock, said the motion. To the contrary, the complaint “turns on theories of VPPA liability that have been rejected for years,” it said: “The claims asserted here must also fail.”

Over the past year, hundreds of class action lawsuits have alleged that businesses’ use of certain analytical tools violates the VPPA, said the motion. Nearly all the cases involve the same “identifier” -- the “now infamous” Facebook ID -- which courts “have generally found at the pleading stage may allow someone to personally identify an individual,” it said.

That’s “crucial” because almost every court agrees that the VPPA applies only to information that readily permits an ordinary person to identify a particular individual as having watched certain videos, said the motion. The case brought by plaintiffs Amma Afriyie and Roy Campbell doesn’t “embrace that theory,” it said.

They instead argue that disclosure of information about their devices implicates the VPPA because certain third parties “might be able to figure out who those devices belong to,” said the motion. But that theory of liability has been largely, and rightfully, rejected for years, including by the SDNY court, it said: “The various flavors of liability proposed here present no reason to turn back the clock.”

The plaintiffs’ theories of liability under the VPPA “fail for multiple reasons,” said the motion. Their claims are “exceedingly narrow,” it said. They allege only that they used the Peacock and CNBC apps on their iPhones, which resulted in disclosures to Adobe, it said. Those alleged Adobe disclosures, in turn, don’t and can’t “state a claim,” it said.