Case 1:22-cv-00644-TWT Document 40 Filed 11/04/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`DEBRA LEBAKKEN, individually and
`on behalf of all others similarly
`situated,
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` Plaintiff,
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` v.
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`WEBMD, LLC,
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` Defendant.
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` CIVIL ACTION FILE
` NO. 1:22-CV-644-TWT
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`OPINION AND ORDER
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`This is a putative class action case brought under the Video Privacy
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`Protection Act (“VPPA”). It is before the Court on the Defendant WebMD,
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`LLC’s (“WebMD”) Motion to Dismiss [Doc. 29]. For the reasons set forth below,
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`WebMD’s Motion to Dismiss is DENIED.
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`I.
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`Background1
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`This case arises under the VPPA from allegations that WebMD
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`improperly disclosed personally identifiable information (“PII”) of the Plaintiff
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`Debra Lebakken, and others similarly situated, to Facebook through an online
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`tool called the Facebook Tracking Pixel. (First Am. Compl. ¶¶ 3, 20, 85.)
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`WebMD owns and operates the popular website, WebMD.com, which provides
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`1 The Court accepts the facts as alleged in the First Amended Complaint
`as true for purposes of the present Motion to Dismiss. Wildling v. DNC Servs.
`Corp., 941 F.3d 1116, 1122 (11th Cir. 2019).
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`online health information and medical news to individuals and generates
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`revenue through advertising on its website. (Id. ¶¶ 2, 10.) WebMD delivers
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`some of that health and medical information to individuals through videos, and
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`it allegedly refines content for specific viewers based on prior videos they have
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`watched on the website. (Id. ¶¶ 13–14.) Such content refining is made possible
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`through data aggregators like Facebook, which harvest activity data of online
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`users to create custom audiences and other similar tools for targeted
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`advertising. (Id. ¶¶ 15, 18–19.) On its website, WebMD hosts one of Facebook’s
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`data aggregation tools, the Facebook Tracking Pixel, to analyze the online
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`activity of WebMD users. (Id. ¶¶ 20–24.) Lebakken alleges in detail how
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`WebMD’s Facebook Tracking Pixel records user activity, transmits that data
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`to Facebook, and employs the aggregated data to improve the targeting of its
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`online content to WebMD users. (Id. ¶¶ 24–57.)
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`Lebakken created a Facebook account in 2007 and a WebMD account in
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`2017, the latter requiring her to submit her email address and birthday to
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`create the account. (Id. ¶¶ 62–63.) She also provided her email address to
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`WebMD to receive an e-newsletter, which frequently contained video content.
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`(Id. ¶¶ 56, 62.) Lebakken alleges that when she watched videos on
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`WebMD.com, WebMD disclosed her Facebook ID, her email address, and the
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`video detail, along with other information, to Facebook. (Id. ¶¶ 65–66.) On
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`February 15, 2022, Lebakken brought the present action, on behalf of herself
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`and the putative class, seeking damages for the alleged violations of the VPPA.
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`(Id. ¶ 87.) WebMD now moves to dismiss the claims in Lebakken’s First
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`Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
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`failure to state a claim. (Br. in Supp. of Def.’s Mot. to Dismiss, at 4.)
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`II.
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`Legal Standard
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`A complaint should be dismissed under Rule 12(b)(6) only where it
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`appears that the facts alleged fail to state a “plausible” claim for relief. Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may
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`survive a motion to dismiss for failure to state a claim, however, even if it is
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`“improbable” that a plaintiff would be able to prove those facts; even if the
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`possibility of recovery is extremely “remote and unlikely.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 556 (2007). In ruling on a motion to dismiss, the court
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`must accept the facts pleaded in the complaint as true and construe them in
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`the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A.
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`v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.
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`1983); see also Sanjuan v. American Bd. of Psychiatry & Neurology, Inc., 40
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`F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff
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`“receives the benefit of imagination”). Generally, notice pleading is all that is
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`required for a valid complaint. See Lombard’s, Inc. v. Prince Mfg., Inc., 753
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`F.2d 974, 975 (11th Cir. 1985). Under notice pleading, the plaintiff need only
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`give the defendant fair notice of the plaintiff’s claim and the grounds upon
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`which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly,
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`550 U.S. at 555).
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`III. Discussion
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`WebMD moves to dismiss the First Amended Complaint, arguing that
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`Lebakken has failed to state a claim under the VPPA for several reasons. (Br.
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`in Supp. of Def.’s Mot. to Dismiss, at 5.) Under the VPPA, “[a] video tape service
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`provider who knowingly discloses, to any person, personally identifiable
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`information concerning any consumer of such provider shall be liable to the
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`aggrieved person for the relief” specified in the statute. 18 U.S.C. § 2710(b)(1).
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`In support of its motion to dismiss, WebMD first argues that Lebakken is not
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`a consumer of any video service, then argues that any disclosure of Lebakken’s
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`information did not constitute PII, and finally argues that WebMD did not
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`disclose any PII knowingly. (Br. in Supp. of Def.’s Mot. to Dismiss, at 5–6.) The
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`Court addresses each of these arguments and Lebakken’s responses in turn.
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`A. Consumer Under the VPPA
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`WebMD first argues that Lebakken cannot state a claim under the
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`VPPA because she failed to adequately allege that she is a consumer of any
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`video service. (Id. at 10.) Lebakken responds that WebMD’s e-newsletter
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`constitutes a good or service under the VPPA and that Lebakken was a
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`subscriber of that e-newsletter. (Pl.’s Resp. Br. in Opp’n to Def.’s Mot. to
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`Dismiss, at 3.) Under the VPPA, a “consumer” is “any renter, purchaser, or
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`subscriber of goods or services from a video tape service provider,” and a “video
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`tape service provider” is “any person, engaged in the business . . . of rental,
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`sale, or delivery of prerecorded video cassette tapes or similar audio visual
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`materials.” 18 U.S.C. § 2710(a)(1), (a)(4). The parties dispute (1) whether
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`Lebakken sufficiently alleged she was a subscriber of WebMD’s e-newsletter
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`and (2) whether that e-newsletter constitutes a good or service under the
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`VPPA. (Br. in Supp. of Def.’s Mot. to Dismiss, at 10–16; Pl.’s Resp. Br. in Opp’n
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`to Def.’s Mot. to Dismiss, at 3–13.)
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`1. Was Lebakken a Subscriber under the VPPA?
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`The Eleventh Circuit Court of Appeals has established a multi-factor
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`test in determining whether an individual is a “subscriber” under the VPPA.
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`Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1255–58 (11th Cir. 2015)
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`(“Subscriptions involve some or [most] of the following [factors]: payment,
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`registration, commitment, delivery, [expressed association,] and/or access to
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`restricted content.” (alterations in original) (citation omitted)). Generally,
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`subscribing “involves some type of commitment, relationship, or association
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`(financial or otherwise) between a person and an entity” but does not
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`necessarily require payment. Id. at 1256. Indeed, “there are numerous
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`periodicals, newsletters, blogs, videos, and other services that a user can sign
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`up for (i.e., subscribe to) and receive for free.” Id. Merely downloading a free
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`smartphone application and watching videos at no cost does not constitute
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`subscription. Id. at 1258 (“[T]he free downloading of a mobile app on an
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`Android device to watch free content, without more, does not a ‘subscriber’
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`make.”); Perry v. Cable News Network, Inc., 854 F.3d 1336, 1344 (11th Cir.
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`2017) (finding “the ephemeral investment and commitment associated with
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`[the plaintiff]’s downloading of the CNN App on his mobile device, even with
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`the fact that he ha[d] a separate cable television subscription that include[d]
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`CNN content, [was] simply not enough to consider him a ‘subscriber’”).
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`Here, unlike in Ellis and Perry, Lebakken alleges more than just the
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`free downloading of a mobile application onto her smartphone; she alleges that
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`she exchanged her email address to receive the WebMD e-newsletter and that
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`she also created her own WebMD account. (Pl.’s Resp. Br. in Opp’n to Def.’s
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`Mot. to Dismiss, at 12–13; First Am. Compl. ¶¶ 46, 62.) Because the Eleventh
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`Circuit in Ellis expressly contemplated “newsletters . . . that a user can sign
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`up for (i.e., subscribe to) and receive for free,” the Court finds that Lebakken
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`has adequately pleaded that she was a subscriber under the VPPA. Ellis, 803
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`F.3d at 1256.
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`2. Was WebMD’s E-Newsletter a Good or Service Under the VPPA?
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`WebMD next argues that Lebakken was not a subscriber of any video
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`service, as required to state a claim under the VPPA. (Br. in Supp. of Def.’s
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`Mot. to Dismiss, at 12.) Lebakken argues, in response, that WebMD interprets
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`the phrase “goods or services” too narrowly when it argues that its e-newsletter
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`did not constitute a video service under the VPPA. (Pl.’s Resp. Br. in Opp’n to
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`Def.’s Mot. to Dismiss, at 3.) The Court agrees with Lebakken on this point. To
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`constitute a “consumer” under the VPPA, the plaintiff must subscribe to “goods
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`or services from a video tape service provider,” not a video service as WebMD
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`attempts to frame the issue. Thus, the question here is whether WebMD’s
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`e-newsletter constitutes a good or service of a video tape service provider.2
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`The Court concludes that Lebakken has plausibly pleaded that
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`WebMD’s e-newsletter constitutes a good or service under the VPPA.
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`Specifically, Lebakken alleges that the e-newsletter provides subscribers with
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`doctor-approved health tips, which WebMD monetizes by selling advertising
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`space alongside those tips to generate revenue. (Pl.’s Resp. Br. in Opp’n to
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`Def.’s Mot. to Dismiss, at 5–6 (citing First Am. Compl. ¶¶ 14, 46).) Such
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`allegations are sufficient to state a claim that the e-newsletter is a good or
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`service, considering that the phrase “goods or services” is generally construed
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`broadly to encompass “all parts of the economic output of society.” (Id. at 5
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`(quoting D.C. Code Ann. § 28-3904(7)).)
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`2 WebMD provides the statutory definition of video tape service provider
`in both of its briefs but does not specifically argue in either brief that it is not
`a video tape service provider. (Br. in Supp. of Def.’s Mot. to Dismiss, at 9–10;
`Reply. Br. in Supp. of Def.’s Mot. to Dismiss, at 3.) Lebakken, in response,
`treats this omission as an admission that WebMD is a video tape service
`provider. (Pl.’s Resp. Br. in Opp’n to Def.’s Mot. to Dismiss, at 3.) WebMD’s
`arguments regarding legislative history, however, suggest that it believes it is
`not a video tape service provider, as contemplated by the VPPA. (See Br. in
`Supp. of Def.’s Mot. to Dismiss, at 15 (citing In re Nickelodeon Consumer Priv.
`Litig., 827 F.3d 262, 284 (3d Cir. 2016), and Costanzo v. City of Omaha, No.
`8:04CV99, 2004 WL 2359722, at *2 (D. Neb. Oct. 19, 2004)); see also Reply. Br.
`in Supp. of Def.’s Mot. to Dismiss, at 3.) The Court concludes that Lebakken
`has adequately alleged that WebMD is a video tape service provider because
`she alleges that WebMD is engaged in the business of delivering prerecorded
`audio-visual materials to consumers via its e-newsletter and its website. (First
`Am. Compl. ¶¶ 56, 82.) Such allegations are sufficient to survive WebMD’s
`Motion to Dismiss. (See Pl.’s Notice of Suppl. Authority, Doc. 36, at 9–10.)
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`WebMD relies on Austin-Spearman v. AMC Network Ent. LLC, 98 F.
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`Supp. 3d 662, 669 (S.D.N.Y. 2015), in support of its position on this issue,
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`arguing that a plaintiff cannot state a claim under the VPPA when he
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`“subscribes only to a portion of the provider’s services that are distinct and set
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`apart from its provision of videos.” (Br. in Supp. of Def.’s Mot. to Dismiss, at 12
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`(quoting Austin-Spearman, 98 F. Supp. 3d at 671).) In response, Lebakken
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`argues that WebMD’s reliance on Austin-Spearman is misplaced because the
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`discussion it references is both irrelevant and dicta, considering that Lebakken
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`alleges that WebMD’s e-newsletter “features videos that link back to [its]
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`website.” (Pl.’s Resp. Br. in Opp’n to Def.’s Mot. to Dismiss, at 9–10.)
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`WebMD essentially argues that Lebakken providing her email address
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`to WebMD to subscribe to the e-newsletter in 2017 is too attenuated from her
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`viewing of any WebMD videos to state claim under the VPPA. (Br. in Supp. of
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`Def.’s Mot. to Dismiss, at 14.) Specifically, WebMD argues that although the
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`First Amended Complaint alleges that WebMD “frequently features its video
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`content through its email newsletter,” Lebakken never actually alleges that
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`she ever accessed any of the videos featured in the e-newsletter. (Id. at 14–15
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`(quoting First Am. Compl. ¶ 56).) The question here, however, is not whether
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`Lebakken alleges that she viewed the videos embedded within the e-newsletter
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`but rather whether the e-newsletter constitutes a good or service to which
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`Lebakken subscribed.3 Having resolved the answer to the former question in
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`the affirmative and construing the facts as alleged in the First Amended
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`Complaint in the light most favorable to Lebakken, the Court concludes that
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`Lebakken states a claim as a consumer under the VPPA.
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`B. Disclosure of PII
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`WebMD next argues that Lebakken has failed to allege facts
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`demonstrating that WebMD improperly disclosed her PII. (Pl.’s Resp. Br. in
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`Opp’n to Def.’s Mot. to Dismiss, at 16.) The VPPA defines PII as including
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`“information which identifies a person as having requested or obtained specific
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`video materials or services from a video tape service provider.” 18 U.S.C.
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`§ 2710(a)(3). Lebakken argues that her allegation of WebMD’s disclosure of her
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`Facebook ID, email address, and the webpages she viewed are sufficient
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`identifiers to constitute PII under the VPPA. (Pl.’s Resp. Br. in Opp’n to Def.’s
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`Mot. to Dismiss, at 15 (citing In re Hulu Priv. Litig., No. C 11-03764, 2014 WL
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`1724344, at *14 (N.D. Cal. Apr. 28, 2014), and First Am. Compl. ¶¶ 65–66).) In
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`reply, WebMD argues that Lebakken fails to allege that any disclosure of her
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`Facebook ID or email address was connected to her video viewing information.
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`(Reply. Br. in Supp. of Def.’s Mot. to Dismiss, at 6–7 (citing Robinson v. Disney
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`Online, 152 F. Supp. 3d 176, 179 (S.D.N.Y. 2015)).)
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`3 For example, the disclosure by a streaming service of a person’s movie
`rental history would be enough to state a claim for violation of the VPPA; the
`person need not have actually watched any of the movies for the act of
`disclosure to nonetheless constitute a violation of the statute.
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`The Third Circuit Court of Appeals thoroughly discussed the issue of
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`determining what constitutes PII under the VPPA in In re Nickelodeon
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`Consumer Privacy Litigation, 827 F.3d at 281–90. Though it declined to create
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`a bright-line rule, the Third Circuit established generally that PII “means the
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`kind of information that would readily permit an ordinary person to identify a
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`specific individual’s video-watching behavior.” Id. at 290. Citing a related First
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`Circuit case, the court noted that “‘there is certainly a point at which the
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`linkage of information to identity becomes too uncertain, or too dependent on
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`too much yet-to-be-done, or unforeseeable detective work’ to trigger liability
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`under” the VPPA. Id. at 289 (quoting Yershov v. Gannett Satellite Info.
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`Network, Inc., 820 F.3d 482, 486 (1st Cir. 2016) (holding that the defendant’s
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`alleged disclosure of the GPS coordinates of the plaintiff’s phone at the time of
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`viewing, in addition to the video information itself, supported a plausible claim
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`under the VPPA)). Under its articulated standard, however, the Third Circuit
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`determined that disclosing “an IP address, a device identifier, or a browser
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`fingerprint” did not constitute PII for purposes of VPPA liability. Id.
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`Here, the Court finds that Lebakken adequately alleged that WebMD
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`disclosed her Facebook ID and email address in connection with her video
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`viewing information to Facebook and that the disclosure of such information
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`constituted a disclosure of PII, supporting a plausible claim under the VPPA.
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`(See First Am. Compl. ¶¶ 65–66.) Whether Lebakken had recently logged into
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`her Facebook account, such that transmission of her Facebook ID upon viewing
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`WebMD videos would be possible, is a question of fact appropriate for
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`resolution at a later stage in this litigation. (Pl.’s Resp. Br. in Opp’n to Def.’s
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`Mot. to Dismiss, at 17; Reply. Br. in Supp. of Def.’s Mot. to Dismiss, at 6–7.)
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`For now, the Court finds sufficient that Lebakken has alleged the disclosure
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`itself. Accordingly, WebMD is not entitled to dismissal of the First Amended
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`Complaint on this ground.
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`C. Knowledge of Disclosure
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`Finally, WebMD argues that Lebakken has failed to adequately plead
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`that any disclosure of her PII by WebMD was made knowingly. (Br. in Supp.
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`of Def.’s Mot. to Dismiss, at 19.) In response, Lebakken contends that the First
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`Amended Complaint unmistakably demonstrates that WebMD disclosed
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`Lebakken’s PII knowingly. (Pl.’s Resp. Br. in Opp’n to Def.’s Mot. to Dismiss,
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`at 20.) In support of its position on the issue, WebMD relies on In re Hulu
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`Privacy Litigation, 86 F. Supp. 3d 1090 (N.D. Cal. 2015). (Br. in Supp. of Def.’s
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`Mot. to Dismiss, at 19.)
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`In In re Hulu, the plaintiffs claimed that Hulu violated the VPPA when
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`it disclosed their video viewing information to Facebook through the Facebook
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`“Like” button that Hulu added to its videos. In re Hulu, 86 F. Supp. 3d at 1091.
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`Providing the legal standard, the United States District Court for the Northern
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`District of California reiterated that the knowing disclosure of PII under the
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`VPPA requires the conscious transmission of private information. Id. at 1095.
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`Under that standard and the facts of the case, the court concluded that the
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`plaintiff’s VPPA claim could not survive summary judgment, reasoning that
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`there was “no evidence that Hulu knew that Facebook might combine a
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`Facebook user’s identity (contained in the c_user cookie) with the watch-page
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`address to yield [PII] under the VPPA.” Id. at 1097. Consequently, there was
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`“no proof that Hulu knowingly disclosed any user ‘as having requested or
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`obtained specific video materials or services.’” Id. (quoting 18 U.S.C.
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`§ 2710(a)(3)).
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`WebMD contends that the court’s holding in In re Hulu applies to the
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`present case because Lebakken has not alleged facts showing that WebMD
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`knew its consumers’ video viewing information and identify information would
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`be combined and shared with Facebook. (Br. in Supp. of Def.’s Mot. to Dismiss,
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`at 20.) Lebakken argues, in response, that the allegations of the First Amended
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`Complaint support that WebMD knowingly transmitted Lebakken’s PII and
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`video viewing information to Facebook and that In re Hulu is distinguishable
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`because it was a summary judgment disposition involving the Facebook “Like”
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`button, not a 12(b)(6) motion involving the Facebook Tracking Pixel. (Pl.’s
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`Resp. Br. in Opp’n to Def.’s Mot. to Dismiss, at 21.)
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`The Court agrees with Lebakken that the present case is distinguishable
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`from In re Hulu. Here, the Court is not faced with evaluating evidence that
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`WebMD knew Facebook would combine the video viewing and identity
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`information of its consumers; rather, the question is whether the allegations of
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`the First Amended Complaint plausibly state a claim under the VPPA upon
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`which relief may be granted. The Court finds that Lebakken does plausibly
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`allege WebMD’s conscious transmission of its consumers’ private information,
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`and thus, WebMD is not entitled to dismissal of the First Amended Complaint
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`on that ground.
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`IV.
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`Conclusion
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`For the foregoing reasons, WebMD’s Motion to Dismiss [Doc. 29] is
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`DENIED.
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`SO ORDERED, this 4th day of November, 2022.
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`______________________________
`THOMAS W. THRASH, JR.
`United States District Judge
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