VPPA, VCPA Claims vs. NBCU, Peacock Should Be ‘Promptly Dismissed,’ Says Reply

In their April 12 opposition to the NBCUniversal and Peacock motion to dismiss their first amended complaint (see 2404160001), plaintiffs Amma Afriyie and Roy Campbell “present arguments wholly divorced from the cases they cite,” said the defendants’ reply Friday (docket 1:23-cv-09433) in U.S. District Court for Southern New York in Manhattan in support of the motion to dismiss.

Nowhere is that disconnect more evident “than with the threshold legal issue presented by this case,” said the reply. At issue is whether the information the defendants allegedly disclosed to third parties constitutes personally identifying information (PII) under the Video Privacy Protection Act (VPPA) and the New York Video Consumer Protection Act (VCPA), it said.

As the motion to dismiss explains, the plaintiffs’ PII “recipient-dependent” theory, stemming from the 1st U.S. Circuit Appeals Court’s 2016 decision in Yershov v. Gannett Satellite Information Network, has been rejected almost everywhere in favor of the “ordinary person” standard, including by every Southern District of New York court to address it, said the reply. In response, the plaintiffs first wrongly claim that the defendants ignore the issue, and then contend that no SDNY cases agree with U.S. District Judge Jed Rakoff’s 2022 analysis in Wilson v. Triller, it said.

But each of the SDNY courts that the plaintiffs cite “explicitly agrees with Wilson’s statutory analysis,” and recognizes that the majority of courts, including those in the SDNY, do too, said the reply. The same is true with the plaintiffs’ attempts to analogize this case to recent VPPA decisions addressing the Facebook ID, it said. Those cases explain that disclosure of the Facebook ID is personally identifying because it satisfies the ordinary person test, it said.

Yet the plaintiffs “refuse to acknowledge that underlying rationale or why it dooms their theory of VPPA and VCPA liability," said the reply. That’s because the identifiers they rely on are meaningless to an ordinary person, it said. There’s eight years of case law rejecting the plaintiffs’ “central legal theory,” it said. The plaintiffs “identify no reason to turn back the clock,” it said.

The plaintiffs’ other arguments regarding their VPPA or VCPA claims “fare no better,” said the reply. Their discussion about Adobe IDs fails to differentiate between data that’s unique, like Adobe IDs, and that which is personally identifying, like a Facebook ID, it said: “The latter might support a VPPA claim; the former cannot.”

The opposition also fails to explain why the plaintiffs, who only used two NBCU apps and the same type of device, can represent individuals who used other apps and devices, whose claims will turn on unique evidence unrelated to the plaintiffs’ claims, said the reply. The plaintiffs don’t address the unique features of the VCPA identified in the motion to dismiss, and they also fail to “salvage” their New York General Business Law Section 349 and unjust enrichment claims, it said. To the contrary, their opposition confirms that each relies on the defendants’ alleged VPPA or VCPA liability, it said. Because the video-privacy claims fail, so do the others, and the complaint “should be promptly dismissed,” it said.