District Court Tosses Video Privacy Case Against NBA
A federal judge dismissed a Video Privacy Protection Act (VPPA) case against the NBA on Monday, citing the ordinary person standard from Solomon v. Flipps Media (see 2508110052) as the basis for doing so.
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The case, Salazar v. NBA, resulted in the landmark ruling from the 2nd U.S. Circuit Court of Appeals that broadened the definition of ‘consumer’ under the 1988 statute, which has now led to a circuit split on who qualifies to bring a case under the VPPA (see 2501100009 and 2508190026).
But the 2nd Circuit remanded the proceedings, and in June, plaintiff Michael Salazar filed an amended complaint in case 1:22-cv-07935. The U.S. District Court for Southern New York on Monday tossed the case on different grounds: the average person would not have been able to identify Salazar with the information transmitted with the tracking pixel.
“The Second Circuit recently adopted the ‘ordinary person’ standard and held that ‘personally identifiable information encompasses information that would allow an ordinary person to identify a consumer’s videowatching habits, but not information that only a sophisticated technology company could use to do so,’” said Judge Jennifer Rochon. “The Second Circuit declared that ‘Solomon effectively shut the door for Pixel-based VPPA claims.’”
Since the court finds Solomon consistent with the Salazar case, and Solomon is not soon to be overruled, the case is dropped, Rochon added.
In response, Salazar appealed the district court’s decision on Tuesday.
Following the 2nd Circuit's October 2024 ruling on what it means to be a consumer, the NBA asked the U.S. Supreme Court to review the case (see 2503190047), which the high court could make a decision on soon.
Though the basketball association has the support of the NFL, the National Retail Federation (NRF) and the Interactive Advertising Bureau (IAB) (see 2505020048), Salazar opposes review from the Supreme Court (see 2506300062).
He has continuously called the case a "poor vehicle" for the question it seeks to answer (see 2508130055), including in a brief filed to the high court Tuesday following the district court's Monday ruling. The Supreme Court "cannot reach the lower court’s independent basis for dismissal in this posture," which "underscores this case’s vehicle problems," Salazar said.
"At the very least, simultaneous appeals here and at the Second Circuit on distinct legal questions -- each of which involves a circuit split and each of which is potentially outcome- determinative -- 'might complicate the Court’s review' in this case," he added. In addition, he argued that the ordinary person statute is wrong in this case, and urged the high court to deny NBA's petition for review.