Case 4:22-cv-08954-DMR Document 1 Filed 12/19/22 Page 1 of 13
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`PACIFIC TRIAL ATTORNEYS
`A Professional Corporation
`Scott J. Ferrell, Bar No. 202091
`sferrell@pacifictrialattorneys.com
`4100 Newport Place Drive, Ste. 800
`Newport Beach, CA 92660
`Tel: (949) 706-6464
`Fax: (949) 706-6469
`
`Attorneys for Plaintiff
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`
`
`
`Case No. 3:22-cv-8954
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`
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`CLASS ACTION COMPLAINT
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`
`
`KEITH CARROLL, individually and on
`behalf of all others similarly situated,
`
`
`Plaintiff,
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`v.
`
`
`MATTEL INC.; AMERICAN GIRL
`BRANDS LLC; and DOES 1 through 25,
`inclusive,
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`Defendants.
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`CLASS ACTION COMPLAINT
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`

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`Case 4:22-cv-08954-DMR Document 1 Filed 12/19/22 Page 2 of 13
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`I.
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`INTRODUCTION
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`Whenever someone watches a video on www.americangirl.com (the “Website”),
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`Defendants secretly report all the details to Facebook: the visitor’s identity, the titles
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`watched, and more. Why? So Facebook can bombard the person with more ads urging
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`the person to buy products from Defendants.
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`As shown below, Defendants’ actions violate the Video Privacy Protection Act
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`(“VPPA”). As such, Defendants are liable to each class member for $2,500 and related
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`relief.
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`II.
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`JURISDICTION AND VENUE
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`1.
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`This Court has subject matter jurisdiction over this action pursuant to 28
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`U.S.C. § 1331 because it arises under the Video Privacy Protection Act (“VPPA”), a
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`federal law.
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`2.
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`Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of
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`the acts and events giving rise to the claims occurred in this District.
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`3.
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`Defendants are subject to personal jurisdiction because they have sufficient
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`minimum contacts with California and do business with California residents.
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`III. PARTIES
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`Plaintiff is an individual and consumer advocate.
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`Defendants are Delaware entities that own, operate, and/or control the
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`4.
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`5.
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`Website.
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`6.
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`The above-named Defendants, along with their affiliates and agents, are
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`collectively referred to as “Defendants.” The true names and capacities of the Defendants
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`sued herein as DOE DEFENDANTS 1 through 25, inclusive, are currently unknown to
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`Plaintiff, who therefore sues such Defendants by fictitious names. Each of the Defendants
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`designated herein as a DOE is legally responsible for the unlawful acts alleged herein.
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`Plaintiff will seek leave of Court to amend the Complaint to reflect the true names and
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`capacities of the DOE Defendants when such identities become known.
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`CLASS ACTION COMPLAINT
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`Case 4:22-cv-08954-DMR Document 1 Filed 12/19/22 Page 3 of 13
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`7.
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`Plaintiff is informed and believes that at all relevant times, every Defendant
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`was acting as an agent and/or employee of each of the other Defendants and was acting
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`within the course and scope of said agency and/or employment with the full knowledge
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`and consent of each of the other Defendants, and that each of the acts and/or omissions
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`complained of herein was ratified by each of the other Defendants.
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`IV. FACTUAL ALLEGATIONS
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`A. THE FACEBOOK TRACKING PIXEL
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`8.
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`Facebook is a social networking company where users are required to
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`identify themselves by “the name they go by in everyday life.”1 To create a Facebook
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`account, a user must provide first name, last name, date of birth and gender.2
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`9.
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`Facebook generates revenue by selling advertising space on its website
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`based upon its ability to identify user interests.3 Facebook can identify user interests by
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`monitoring “offsite” user activity, which allows Facebook to judge user interests beyond
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`what users freely disclose.4
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`10. Facebook enables advertisers to identify “people who have already shown
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`interest in [their] business”, which Facebook calls “Custom Audiences.”5 The Custom
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`Audiences tool requires advertisers to supply user data to Facebook, and most do so via
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`the Facebook Tracking Pixel.6
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`(last
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`visited
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`1 FACEBOOK, COMMUNITY STANDARDS, PART IV INTEGRITY AND
`AUTHENTICITY,
`https://www.facebook.com/communitystandards/integrity_authenticity
`December 15, 2022).
`2 FACEBOOK, SIGN UP, https://www.facebook.com/ (last visited December 15,
`2022).
`3
`FACEBOOK,
`ON
`ADVERTISE
`WHY
`FACEBOOK,
`https:/www.facebook.com/business/help/20502906038706 (last visited December 15,
`2022).
`4 FACEBOOK, AD TARGETING: HELP YOUR ADS FIND THE PEOPLE WHO
`WILL LOVE
`YOUR BUSINESS, https://www.facebook.com/business/ads/ad-targeting (last visited
`December 15, 2022).
`5
`AUDIENCE,
`CUSTOM
`EVENTS
`ABOUT
`FACEBOOK,
`https://www.facebook.com/business/help/366151833804507?id=300360584271273
`(last visited December 15, 2022).
`6 FACEBOOK, CREATE A CUSTOMER LIST CUSTOM AUDIENCE,
`https://www.facebook.com/business/help/170456843145568?id=2469097533764
`94
`(last visited December 15, 2022); FACEBOOK, CREATE A WEBSITE CUSTOM
`Continued on the next page
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`11. The Facebook Tracking Pixel is a device included programming code that
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`advertisers can integrate into their website. Once activated, the Facebook Tracking Pixel
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`“tracks the people and type of actions they take.”7 When the Facebook Tracking Pixel
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`captures an action, it sends a record to Facebook, which Facebook then assimilates into
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`the Custom Audiences dataset.
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`12. Advertisers control what actions—or, as Facebook calls it, “events”— the
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`Facebook Tracking Pixel will collect, including the website’s metadata, along with what
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`pages a visitor views.8
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`13. Advertisers control how the Facebook Tracking Pixel identifies visitors. The
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`Facebook Tracking Pixel is configured to automatically collect “HTTP Headers” and
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`“Pixel-specific Data.”9 HTTP Headers collect “IP addresses, information about the web
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`browser, page location, document, referrer and persons using the website.”10 Pixel-
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`specific Data includes “the Pixel ID and cookie.”11
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`B. AMERICANGIRL.COM AND THE FACEBOOK PIXEL
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`14. Defendants’ business plan involves persuading potential customers to
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`purchase their products via videos about American Girl dolls. As such, Defendants are
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`“video tape service providers” under the VPPA because, as part of their business, they
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`deliver “prerecorded video” content or other “similar audio visual materials.”
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`15. Americangirl.com hosts and delivers content including videos.
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`16. Americangirl.com hosts the Facebook tracking Pixel and transmits
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`numerous distinct events to Facebook.12
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`AUDIENCE,
`https://www.facebook.com/business/help/1474662202748341?id=2469097953376494
`(last visited December 15, 2022).
`7 FACEBOOK,RETARGETING, https://www.facebook.com/business/oals/reta getting.
`8 See FACEBOOK, FACEBOOK PIXEL, ACCURATE EVENT TRACKING,
`ADVANCED,https://developers.facebook.com/docs/facebook-pixel/advanced/; see also
`FACEBOOK, BEST
`PRACTICES
`FOR
`FACEBOOK
`PIXEL
`SETUP,
`https://www.facebook.com/business/help/218844828315224?id=1205376682832142
`(last visited December 15, 2022).
`9 FACEBOOK, FACEBOOK PIXEL, https://developers.facebook.com/docs/facebook-
`pixel/ (last visited December 15, 2022).
`10 Id.
`11 Id.
`12 This data is derived from a tool created and offered by Facebook.
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`Case 4:22-cv-08954-DMR Document 1 Filed 12/19/22 Page 5 of 13
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`17. Defendants have configured the PageView event to transmit the URL and
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`the category of content selected.
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`Figure 2
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`18.
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`In the above figure, for example, Defendants disclose a webpage’s
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`Universal Resource Locator (“URL”).
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`19. Microdata discloses the video’s title and other descriptors.
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`20. The aggregate pixel events (Page View and Microdata Automatically
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`Detected) permit an ordinary person to identify a video’s content, title, and location.
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`21. When a visitor watches a video on Americangirl.com while logged into
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`Facebook, Defendants compel a visitor’s browser to transmit the c user cookie to
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`Facebook. The c user cookie contains that visitor’s unencrypted Facebook ID. When
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`accessing the above video, for example, Defendants compelled the browser to send ten
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`cookies:
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`22. When a visitor’s browser has recently logged out of Facebook, Defendants
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`will compel the browser to send a smaller set of cookies:
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`Figure 6
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`23. The fr cookie contains an encrypted Facebook ID and browser identifier.13
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`The datr cookies also identifies a browser.14 Facebook, at a minimum, uses the fr cookie
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`to identify particular users.15
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`24. The _fbp cookie contains, at least, an unencrypted value that uniquely
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`identifies a browser.16 As with the fr cookie, Facebook uses the _fbp cookie to identify
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`users.
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`13 DATA PROTECTION COMMISSIONER, FACEBOOK IRELAND LTD, REPORT
`OF RE-AUDIT (Sept. 21, 2012), http://www.europe-v facebook.org/ODPC_Review.pdf
`(last visited December 15, 2022).
`14 FACEBOOK, COOKIES & OTHER STORAGE TECHNOLOGIES,
`https://www.facebook.com/policy/cookies/ (last visited December 15, 2022).
`15 FACEBOOK, COOKIES & OTHER STORAGE TECHNOLOGIES,
`https://www.facebook.com/policy/cookies/ (last visited December 15, 2022).
`16
`API,
`FACEBOOK,
`CONVERSION
`https://developers.facebook.com/docs/marketingapi/conversions-api/parameters/fbp-
`and-fbc/ (last visited December 15, 2022).
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`25. The Facebook Tracking Pixel uses both first- and third-party cookies. A
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`first-party cookie
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`is “created by
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`the website
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`the user
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`is visiting”—i.e.,
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`Americangirl.com.17 A third-party cookie is “created by a website with a domain name
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`other than the one the user is currently visiting”—i.e., Facebook.18 The _fbp cookie is
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`always transmitted as a first-party cookie. A duplicate _fbp cookie is sometimes sent as
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`a third-party cookie, depending on whether the browser has recently logged into
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`Facebook.
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`26. Facebook, at a minimum, uses the fr, _fbp, and c_user cookies to link to
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`Facebook IDs and corresponding Facebook profiles.
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`27. A Facebook ID is personally identifiable information. Anyone can identify
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`a Facebook profile—and all personal information publicly listed on that profile—by
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`appending the Facebook ID to the end of Facebook.com.
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`28. Through the Facebook Tracking Pixel’s code, these cookies combine the
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`identifiers with the event data, allowing Facebook to know, among other things, what
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`Americangirl.com videos a user has watched.19
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`29. By compelling a visitor’s browser to disclose the c_user cookie alongside
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`event data for videos, Defendants knowingly disclose information sufficiently permitting
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`an ordinary person to identify a specific individual’s video viewing behavior.
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`17
`COOKIES,
`FIRST-PARTY
`MAG,
`PC
`https://www.pcmag.com/encyclopedia/term/first-party-cookie (last visited December 15,
`2022). This is confirmable by using developer tools to inspect a website’s cookies and
`track network activity.
`18
`COOKIES,
`THIRD-PARTY
`MAG,
`PC
`https://www.pcmag.com/encyclopedia/term/third-party-cookie (last visited December
`15, 2022). This is also confirmable by tracking network activity.
`19 FACEBOOK, GET STARTED, https://developers.facebook.com/docs/meta-pixel/get-
`started (last visited December 15, 2022).
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`30. By compelling a visitor’s browser to disclose the fr and _fbp cookies
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`alongside event data for videos, Defendants knowingly disclose information sufficient to
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`permit an ordinary person to identify a specific individual’s video viewing behavior.
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`31. By compelling a visitor’s browser to disclose the fr cookie and other browser
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`identifiers alongside event data for videos, Defendants knowingly disclose information
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`sufficiently permitting an ordinary person to identify a specific individual’s video
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`viewing behavior.
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`32. Facebook confirms that it matches activity on Americangirl.com with a
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`user’s profile. Facebook allows users to download their “off-site activity,” which is a
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`“summary of activity that businesses and organizations share with us about your
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`interactions, such as visiting their apps or websites.”20 The off-site activity report
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`confirms Defendants identify an individual’s video viewing activities.
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`C.
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`EXPERIENCE OF PLAINTIFF
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`33. Plaintiff is a consumer privacy advocate with dual motivations for watching
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`a video on Defendants’ Website. First, Plaintiff was genuinely interested in learning
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`more about the goods and services offered by Defendants. Second, Plaintiff is a “tester”
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`who works to ensure that companies abide by the privacy obligations imposed by federal
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`law. As someone who advances important public interests at the risk of vile personal
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`attacks, Plaintiff should be “praised rather than vilified.” Murray v. GMAC Mortgage
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`Corp., 434 F.3d 948, 954 (7th Cir. 2006).
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`34.
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`In enacting the VPAA, Congress intentionally chose to extend its
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`protections to all persons who watch videos, not simply those who purchase them or
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`claim pecuniary loss. As such, statutes like the VPPA are largely enforced by civic-
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`minded “testers” such as Plaintiff. See Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d
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`1109 (9th Cir. 2014) (explaining why testers have Article III standing and generally
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`20 See https://www.facebook.com/help/2207256696182627 (Off-Facebook Activity is
`only a “summary” and Facebook acknowledges “receiv[ing] more details and activity
`than what appears in your Facebook activity.” What is more, it omits “information we’ve
`received when you’re not logged into Facebook, or when we can’t confirm that you’ve
`previously used Facebook on that device.”) (last visited December 15, 2022).
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`discussing value and importance of testers in enforcement of consumer protection and
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`civil rights statutes).21
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`35. During the relevant time period, Plaintiff visited Americangirl.com and
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`watched one or more videos.
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`36. When Plaintiff watched videos on Americangirl.com, Defendants disclosed
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`event data, which recorded and disclosed the video’s title and URL, along with every
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`time Plaintiff clicked a button to pause or play the video. Alongside this event data,
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`Defendants also disclosed identifiers for Plaintiff, including the c_user and fr cookies. In
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`other words, Defendants did exactly what the VPPA prohibits: they disclosed Plaintiff’s
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`video viewing habits to a third party.
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`37. Given the nature of Defendants’ business, visitors would be shocked and
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`appalled to know that Defendants secretly disclose to Facebook all of key data regarding
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`a visitors’ viewing habits.
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`38. Defendants’ conduct
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`is
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`illegal, offensive, and contrary
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`to visitor
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`expectations: indeed, a recent study conducted by the Electronic Privacy Information
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`Center, a respected thought leader regarding digital privacy, found that: (1) nearly 9 in
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`10 adults are “very concerned” about data privacy, and (2) 75% of adults are unaware of
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`the extent to which companies gather, store, and exploit their personal data.
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`39. By disclosing his event data and identifiers, Defendant disclosed Plaintiff’s
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`personally identifiable information (“PII”) to a third-party.
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`CLASS ALLEGATIONS
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`40. Plaintiff brings this action individually and on behalf of all others similarly
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`situated (the “Class”) defined as follows:
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`21 Civil rights icon Rosa Parks was acting as a “tester” when she initiated the Montgomery
`Bus Boycott in 1955, as she voluntarily subjected herself to an illegal practice to obtain
`standing to challenge the practice in Court. See https://www.naacpldf.org/press-
`release/ldf-pays-tribute-to-rosa-parks-on-the-sixtieth-anniversary-of-her-courageous-
`stand-against-segregation/ “(Contrary to popular myth, Rosa Parks was not just a tired
`seamstress who merely wanted to sit down on a bus seat that afternoon. She refused to
`give up her seat on principle. Parks had long served as the secretary of the Montgomery
`branch of the NAACP [and] challenging segregation in Montgomery’s transportation
`system was on the local civil rights agenda for some time.”) (last downloaded November
`2022).
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`All persons in the United States who watched video content on
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`Americangirl.com and whose PII was disclosed by Defendants to
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`Facebook during the Class Period.
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`41. Numerosity (Fed. R. Civ. P. 23(a)(1)): At this time, Plaintiff does not know
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`the exact number of members of the aforementioned Class. However, given the
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`popularity of Defendant’s website, the number of persons within the Class is believed to
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`be so numerous that joinder of all members is impractical.
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`42. Commonality and Predominance (Fed.R.Civ.P. 23(a)(2), 23(b)(3)):
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`There is a well-defined community of interest in the questions of law and fact involved
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`in this case. Questions of law and fact common to the members of the Class that
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`predominate over questions that may affect individual members of the Class include:
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`a) whether Defendants collected Plaintiff’s and the Class’s PII;
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`b) whether Defendants unlawfully disclosed and continues to disclose their
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`users’ PII in violation of the VPPA;
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`c) whether Defendants’ disclosures were committed knowingly; and
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`d) whether Defendants disclosed Plaintiff’s and the Class’s PII without
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`consent.
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`43. Typicality (Fed. R. Civ. P. 23(a)(3)): Plaintiff’s claims are typical of those
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`of the Class because Plaintiff, like all members of the Class, used Americangirl.com to
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`watch videos, and had PII collected and disclosed by Defendants.
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`44. Adequacy (Fed. R. Civ. P. 23(a)(4)): Plaintiff has retained and is
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`represented by qualified and competent counsel who are highly experienced in complex
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`consumer class action litigation. Moreover, Plaintiff is able to fairly and adequately
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`represent and protect the interests of the Class.
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`45. Superiority (Fed. R. Civ. P. 23(b)(3)): A class action is superior to other
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`available methods for the fair and efficient adjudication of this controversy because
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`individual litigation of the claims of all members of the Class is impracticable. Even if
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`every member of the Class could afford to pursue individual litigation, the court system
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`could not. It would be unduly burdensome to the courts in which individual litigation of
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`numerous cases would proceed. Individualized litigation would also present the potential
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`for varying, inconsistent, or contradictory judgments, and would magnify the delay and
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`expense to all parties and to the court system resulting from multiple trials of the same
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`factual issues. By contrast, the maintenance of this action as a class action, with respect
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`to some or all of the issues presented herein, presents few management difficulties,
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`conserves the resources of the parties and of the court system and protects the rights of
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`each member of the Class. Plaintiff anticipates no difficulty in the management of this
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`action as a class action.
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`CAUSE OF ACTION
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`VIOLATION OF THE VIDEO PRIVACY PROTECTION ACT
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`18 U.S.C.§ 2710, et seq.
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`46. Defendants are a “video tape service provider” because they create, host,
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`and deliver videos on The Website, thereby “engag[ing] in the business, in or affecting
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`interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette
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`tapes or similar audio visual materials.” 18 U.S.C. § 2710(a)(4). Defendants also use the
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`videos to collect and disclose viewers’ PII so it can later retarget them for advertisements.
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`47. Plaintiff and members of the Class are “consumers” because they have
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`watched videos on Americangirl.com. 18 U.S.C. § 2710(a)(1).
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`48. Defendants disclosed to a third party, Facebook, Plaintiff’s and the Class
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`members’ personally identifiable information. Defendants utilized the Facebook
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`Tracking Pixel to compel Plaintiff’s web browser to transfer Plaintiff’s identifying
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`information, like his Facebook ID, along with Plaintiff’s event data, like the title of the
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`videos he viewed.
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`49. Plaintiff and the Class members viewed videos using Americangirl.com.
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`50. Defendants knowingly disclosed Plaintiff’s PII because it used that data to
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`build audiences on Facebook and retarget them for its advertising campaigns.
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`51. Plaintiff and Class members did not provide Defendants with any form of
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`consent—either written or otherwise—to disclose their PII to third parties.
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`52. Defendant’s disclosures were not made in the “ordinary course of business”
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`as the term is defined by the VPPA because they were not necessary for “debt collection
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`activities, order fulfillment, request processing, [or] transfer of ownership.” 18 U.S.C. §
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`2710(a)(2).
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff seeks judgment against Defendant, individually and on
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`behalf of all others similarly situated, as follows:
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`a.
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`For an order certifying the Class under Rule 23 of the Federal Rules of Civil
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`b.
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`c.
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`d.
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`f.
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`g.
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`Procedure, naming Plaintiff as representative of the Class;
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`For an order declaring that Defendant’s conduct violates the VPPA;
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`For an order finding in favor of Plaintiff and the Class on all counts asserted
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`herein;
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`An award of statutory damages under the VPAA;
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`An award of punitive damages;
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`For prejudgment interest on all amounts awarded;
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`For injunctive relief to stop the illegal conduct; and
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`For an order awarding Plaintiff and the Class their reasonable attorneys’
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`fees, expenses and costs of suit.
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`Dated: December 19, 2022
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`PACIFIC TRIAL ATTORNEYS, APC
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`By:
`Scott. J. Ferrell
`Attorneys for Plaintiff
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