Petition Seeks to Compel VPPA Claims of 2 Discovery+ Subscribers to Arbitration

Brian Pilon and Russell Stephen seek an order compelling Discovery Communications to arbitration, according to their petition Friday (docket 1:24-cv-04760) in U.S. District Court for Southern New York in Manhattan. Pilon and Stephen streamed video content on Discovery+ and are pursuing federal data privacy claims against Discovery under a mandatory arbitration clause in the company’s “visitor agreement,” the petition said. The defendant without consent disclosed the petitioners’ identities and the videos they watched on Discovery+ to third-party advertising and analytics companies, including Meta and Google, it said. Discovery’s conduct violated the Video Privacy Protection Act, which was enacted “specifically for the purpose of protecting consumers’ privacy interests in the videos they watched,” it said. Pilon and Stephen delivered letters on Jan. 9, 2023, informing Discovery of their intention to pursue federal VPPA claims, it said. The same day the letters were delivered, the company posted a version of its visitor agreement to the Discovery+ website, containing a different arbitration agreement than the one Pilon and Stephen were party to, the petition alleges. That new arbitration agreement “contains procedural requirements designed to be onerous to consumers,” it said. It includes a “pre-dispute notice” that requires claimants “to attest to facts already in Discovery’s possession,” like customers’ subscription histories and current subscription status, it said. And it purports to give Discovery “the right to force each consumer to personally attend one-on-one settlement conferences,” at the company’s election, before even filing an arbitration demand, the petition said. It also specifies National Arbitration and Mediation instead of the arbitration provider JAMS specified in the previous arbitration agreement, it said. The parties participated in discussions toward a possible resolution, but those talks broke down May 2, the petition said. That’s when Pilon and Stephen initiated the dispute-resolution process in the original visitor agreement by each filing arbitration demands in JAMS, it said. Discovery wrote JAMS later in May urging rejection of those demands on grounds that they filed them in the wrong forum, it said. Discovery’s position is that the November 2022 visitor agreement that Pilon and Stephen agreed to was now “outdated and superseded” by the newer January 2023 agreement, the petition said. Pilon and Stephen argue that any arbitration clause in the newer agreement doesn’t apply to their disputes, as the visitor agreement they invoked explicitly states that any new arbitration agreement will not apply retroactively, it said. They further argue that the parties had twice agreed to arbitrate disputes about arbitrability, such as the present one, it said. JAMS wrote the petitioners May 29, declining to administer their arbitrations, citing the newer arbitration agreement mandating a different forum, it said. Pilon and Stephen now ask the court to compel Discovery to arbitrate their claims in JAMS under the “plain language” of the visitor agreement, the petition said.