Plaintiffs Urge N.Y. Court to Deny NBC’s Motion to Dismiss Their VPPA Claims

The defendants did so "purposefully" and "inconspicuously" by incorporating software development kits (SDKs) into their apps, which automatically transmit subscribers’ video viewing history and PII to third parties, said the memorandum. That conduct violates the Video Privacy Protection Act (VPPA) and the New York Video Consumer Protection Act (VCPA) because the defendants “failed to obtain the required consent” to transmit video viewing history to the third parties, it said.

The defendants ignore these facts and instead raise several “unavailing arguments” in an attempt to dismiss the VPPA and VCPA claims, said the memorandum. They argue that the surreptitiously transmitted information isn’t personally identifiable as required by the statutes, it said.

But that argument “turns on an overly narrow interpretation of the law and misrepresentation of the facts alleged here,” said the memorandum. The complaint clearly alleges that the defendants transmitted video viewing history with identifiers, including individual Adobe IDs, whose specific purpose was to personally identify individual app subscribers, including to Adobe and other third parties, “so specific individuals could be directly targeted with ads based on the specific videos they viewed,” it said. That “plainly qualifies” as PII under either statute, it said.

The defendants also argue that they aren’t responsible for violating the plaintiffs’ privacy “because they claim they had no way of knowing” whether the SDKs that they "affirmatively incorporated" into the apps would transmit identifying information about the plaintiffs, said the memorandum. “This is nonsensical,” because NBC is the only entity that could have configured the apps to transmit users’ identifying information, it said. To “conveniently claim” now they were “ignorant of the consequences of their own intentional conduct” doesn’t excuse the VCPA and VPPA violations, it said.

While the defendants concede that the plaintiffs have a consumer relationship under the VPPA and the VCPA based on their subscriptions to the apps, they argue that the plaintiffs may not assert claims relating to the apps they didn’t use, said the memorandum. But that’s “a premature class certification argument that is also wrong,” it said.

The defendants also “miraculously claim” that they don’t qualify as video service providers and thus are exempt from liability, said the memorandum. But that argument, which ignores the law and facts alleged, “has been consistently rejected,” it said. The motion to dismiss should be denied.