Class Certification a Major VPPA Obstacle, Lawyers Say
While there is much debate in courts over the Video Privacy Protection Act (VPPA), class certification is one of the largest obstacles, said Morrison Foerster lawyers in a blog post Wednesday.
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There is a circuit split over the definition of a consumer under the statute, with the 2nd and 7th U.S. Circuit Courts of Appeal taking a more expansive approach and the 6th and D.C. Circuits adopting a narrower reading (see 2508190026). In addition, there is disagreement over what counts as personally identifiable information (PII), with the 'ordinary person' standard (see 2508200050), and the 9th U.S. Circuit Court of Appeals narrowing its reading of what it means to be a video tape service provider (see 2503270053).
"Even if these class actions do survive a motion to dismiss" based on the court's ruling on definitions and other requirements, "plaintiffs will eventually have to wrestle with difficult class certification issues," the lawyers said. "The varied ways in which users interface with websites -- logging into social media accounts, using different browsers, and clearing cookies at different rates -- make certifying a class a tall task."
For example, in the 2014 case In re Hulu, the U.S. District Court for Northern California denied class certification, ruling the plaintiffs' theory of liability depended on too many variables, and the common questions didn't predominate over individual ones, the blog said. "For more than a decade" after that case, "no federal court ruled on class certification of VPPA claims" except for settlement purposes.
But now three district courts have addressed it, with only one granting cert. The U.S. District Court for Massachusetts denied cert in Therrien v. Hearst Television because "plaintiffs’ method for identifying class members -- using geolocation data -- was administratively unworkable and risked due process violations," said the lawyers.
The U.S. District Court for Southern Florida "denied certification for lack of 'numerosity'" in the case Martinez v. D2C, holding "that plaintiffs did not properly address uncertainties about whether these users had social media accounts, were logged in, or used browsers that could have blocked pixel tracking."
In Janick v. WebMD, the U.S. District Court for Northern Georgia granted class certification because the proposed class was broad enough and “common sense” supported numerosity," the blog post said.
"In re Hulu and Therrien indicate that plaintiffs may run into difficulties with defining a class that is sufficiently ascertainable in the first instance," said the lawyers. While "Martinez provides a potential roadmap ... for defendants to introduce the many ways in which class members’ claims may differ under a 'pixel' theory of liability," the Jancik case "suggests that a well‑defined class may be able to avoid these pitfalls."