Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 1 of 19 PageID #:1
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`DAINEIRA MANGUM,
`Individually and on behalf of all others
`similarly situated,
`
`
`
`
`
`AMC NETWORKS, INC.,
`
`
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`
`
`
`
`
`Case No:
`
`Judge:
`
`JURY TRIAL REQUESTED
`
`CLASS ACTION COMPLAINT
`
`Plaintiff Daineira Mangum, individually and on behalf of all others similarly situated,
`
`files this Class Action Complaint against Defendant AMC Networks, Inc. (“Defendant”) for
`
`violations of the federal Video Privacy Protection Act, 18 U.S.C. § 2710 (“VPPA”). Plaintiff’s
`
`claims arise from Defendant’s practice of knowingly disclosing to a third party, Meta Platforms,
`
`Inc. (“Facebook”), data containing Plaintiff’s and other digital-subscribers Class Members’
`
`(i) personally identifiable information or Facebook ID (“FID”) and (ii) the computer file
`
`containing video and its corresponding URL viewed (“Video Media”) (collectively, “Personal
`
`Viewing Information”). Plaintiff’s allegations are made on personal knowledge as to Plaintiff
`
`and Plaintiff’s own acts and upon information and belief as to all other matters.
`
`NATURE OF THE ACTION
`
`1.
`
`This is a consumer digital privacy class action complaint against AMC Networks,
`
`Inc., as the owner of Shudder, for violating the VPPA by disclosing its digital subscribers’
`
`identities and Video Media to Facebook without the proper consent.
`
`2.
`
`The VPPA prohibits “video tape service providers,” such as Shudder, from
`
`knowingly disclosing consumers’ personally identifiable information, including “information
`
`1
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 2 of 19 PageID #:2
`
`which identifies a person as having requested or obtained specific video materials or services
`
`from a video tape provider,” without express consent in a stand-alone consent form.
`
`3.
`
`Like other businesses with an online presence, Defendant collects and shares the
`
`personal information of visitors to its website and mobile application (“App”) with third parties.
`
`Defendant does this through cookies, software development kits (“SDK”), and pixels. In other
`
`words, digital subscribers to Shudder have their personal information disclosed to Defendant’s
`
`third-party business partners.
`
`4.
`
`The Facebook pixel is a code Defendant installed on Shudder allowing it to
`
`collect users’ data. More specifically, it tracks when digital subscribers enter Shudder or
`
`Shudder’s accompanying App and view Video Media. Shudder tracks and discloses to Facebook
`
`the digital subscribers’ viewed Video Media, and most notably, the digital subscribers’ FID. This
`
`occurs even when the digital subscriber has not shared (nor consented to share) such information.
`
`5.
`
`Importantly, Defendant shares the Personal Viewing Information – i.e., digital
`
`subscribers’ unique FID and video content viewed – together as one data point to Facebook.
`
`Because the digital subscriber’s FID uniquely identifies an individual’s Facebook user account,
`
`Facebook—or any other ordinary person—can use it to quickly and easily locate, access, and
`
`view digital subscribers’ corresponding Facebook profile. Put simply, the pixel allows Facebook
`
`to know what Video Media one of its users viewed on Shudder.
`
`6.
`
`Thus, without telling its digital subscribers, Defendant profits handsomely from
`
`its unauthorized disclosure of its digital subscribers’ Personal Viewing Information to Facebook.
`
`It does so at the expense of its digital subscribers’ privacy and their statutory rights under the
`
`VPPA.
`
`2
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 3 of 19 PageID #:3
`
`7.
`
`Because Shudder digital subscribers are not informed about this dissemination of
`
`their Personal Viewing Information – indeed, it is automatic and invisible – they cannot exercise
`
`reasonable judgment to defend themselves against the highly personal ways Shudder has used
`
`and continues to use data it has about them to make money for itself.
`
`8.
`
`Defendant chose to disregard Plaintiff’s and hundreds of thousands of other
`
`Shudder digital subscribers’ statutorily protected privacy rights by releasing their sensitive data
`
`to Facebook. Accordingly, Plaintiff brings this class action for legal and equitable remedies to
`
`redress and put a stop to Defendant’s practices of intentionally disclosing its digital subscribers’
`
`Personal Viewing Information to Facebook in knowing violation of VPPA.
`
`JURISDICTION AND VENUE
`
`9.
`
`This Court has subject matter jurisdiction under 28 U.S.C. § 1331 over the claims
`
`that arise under the Video Privacy Protection Act, 18 U.S.C. § 2710.
`
`10.
`
`This Court also has jurisdiction under 28 U.S.C. § 1332(d) because this action is a
`
`class action in which the aggregate amount in controversy for the proposed Class (defined
`
`below) exceeds $5,000,000, and at least one member of the Class is a citizen of a state different
`
`from that of Defendant.
`
`11.
`
`Venue is appropriate in this District pursuant to 28 U.S.C. § 1391 because
`
`Defendant does business in and is subject to personal jurisdiction in this District. Venue is also
`
`proper because a substantial part of the events or omissions giving rise to the claim occurred in
`
`or emanated from this District.
`
`THE PARTIES
`
`12.
`
`Plaintiff Daineira Mangum is an adult citizen of the State of Illinois and is
`
`domiciled in the State of Illinois. Plaintiff began a digital subscription to Shudder in 2021 and
`
`continues to maintain the subscription to this day. Plaintiff has had a Facebook account from
`
`3
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 4 of 19 PageID #:4
`
`approximately 2010 to the present. During the relevant time period she has used her Shudder
`
`digital subscription to view Video Media through Shudder while logged into her Facebook
`
`account. By doing so, Plaintiff’s Personal Viewing Information was disclosed to Facebook
`
`pursuant to the systematic process described herein. Plaintiff never gave Defendant express
`
`written consent to disclose her Personal Viewing Information.
`
`13.
`
`Defendant AMC Networks, Inc.:
`a. Is a publicly traded corporation headquartered in New York, New York.
`
`b. Owns multiple streaming services, cable channels, and movie theatres,
`including Shudder, a horror film streaming service launched in 2015.
`
`c. In 2020, AMC announced Shudder passed the one million subscriber
`milestone.1
`
`d. Shudder has an annual revenue of approximately $12 million.2
`
`e. Shudder includes a Videos section which provides a broad selection of video
`content.
`
`f. Combined, AMC Networks, Inc. and Shudder are used by numerous U.S.
`digital media viewers.
`
`A.
`
`Background of the Video Privacy Protection Act
`
`FACTUAL ALLEGATIONS
`
`14.
`
`The VPPA generally prohibits the knowing disclosure of a customer’s video
`
`rental or sale records without the informed, written consent of the customer in a form “distinct
`
`and separate from any form setting forth other legal or financial obligations.” Under the statute,
`
`
`1 See: Horror Streaming Service Shudder Passes Major Milestone, available at
`https://www.gamespot.com/articles/horror-streaming-service-shudder-passes-major-
`milestone/1100-6482460/ (Last Accessed: September 7, 2022)
`2 See: The Current State of Shudder, available at https://www.thestreamingblog.com/the-current-
`state-of-
`shudder/#:~:text=Viewers%20can%20stream%20Shudder%20using,million%2C%20with%20ju
`st%2060%20employees. (Last Accessed: September 7, 2022)
`
`
`4
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 5 of 19 PageID #:5
`
`the Court may award actual damages (but not less than liquidated damages of $2,500.00 per
`
`person), punitive damages, equitable relief, and attorney’s fees.
`
`15.
`
`The VPPA was initially passed in 1988 for the explicit purpose of protecting the
`
`privacy of individuals’ and their families’ video rental, purchase and viewing data. Leading up to
`
`its enactment, members of the United States Senate warned that “[e]very day Americans are
`
`forced to provide to businesses and others personal information without having any control over
`
`where that information goes.” S. Rep. No. 100-599 at 7-8 (1988).
`
`16.
`
`Senators at the time were particularly troubled by disclosures of records that
`
`reveal consumers’ purchases and rentals of videos and other audiovisual materials. As Senator
`
`Patrick Leahy and the late Senator Paul Simon recognized, records of this nature offer “a
`
`window into our loves, likes, and dislikes,” such that “the trail of information generated by every
`
`transaction that is now recorded and stored in sophisticated record-keeping systems is a new,
`
`more subtle and pervasive form of surveillance.” S. Rep. No. 100-599 at 7-8 (1988) (statements
`
`of Sens. Simon and Leahy, respectively).
`
`17.
`
`In proposing the Video and Library Privacy Protection Act (later codified as the
`
`VPPA), Senator Leahy stated that “[i]n practical terms our right to privacy protects the choice of
`
`movies that we watch with our family in our own homes. And it protects the selection of books
`
`that we choose to read.” 134 Cong. Rec. S5399 (May 10, 1988). Thus, the personal nature of
`
`such information, and the need to protect it from disclosure, is the inspiration of the statute:
`
`“[t]hese activities are at the core of any definition of personhood. They reveal our likes and
`
`dislikes, our interests and our whims. They say a great deal about our dreams and ambitions, our
`
`fears and our hopes. They reflect our individuality, and they describe us as people.” Id.
`
`5
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 6 of 19 PageID #:6
`
`18. While these statements rang true in 1988 when the VPPA was passed, the
`
`importance of legislation like the VPPA in the modern era of data mining from online activities
`
`is more pronounced than ever before. During a recent Senate Judiciary Committee meeting, “The
`
`Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century,” Senator Leahy
`
`emphasized the point by stating: “While it is true that technology has changed over the years, we
`
`must stay faithful to our fundamental right to privacy and freedom. Today, social networking,
`
`video streaming, the ‘cloud,’ mobile apps and other new technologies have revolutionized the
`
`availability of Americans’ information.”3
`
`19.
`
`In this case, Defendant chose to deprive Plaintiff and the Class members of that
`
`right by knowingly and systematically disclosing their Personal Viewing Information to
`
`Facebook, without providing notice to (let alone obtaining consent from) anyone, as explained
`
`herein.
`
`B.
`
`Shudder’s Digital Subscriptions
`
`20.
`
`To register for Shudder, users sign up for an online newsletter. Shudder users
`
`provide their personal information, including but not limited to their name, email address, and
`
`zip code.
`
`21.
`
`AMC Networks, Inc. operates a website in the U.S. accessible from a desktop and
`
`mobile device at Shudder. It also offers an App available for download on Android and iPhone
`
`devices.
`
`
`3 See Committee on the Judiciary, Subcommittee on Privacy, Technology and the Law, The
`Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century, Senate Judiciary
`Committee Subcommittee on Privacy, Technology and the Law,
`https://www.judiciary.senate.gov/meetings/the-video-privacy-protection-act-protecting-viewer-
`privacy-in-the-21st-century (last visited Sept. 02, 2022).
`
`6
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 7 of 19 PageID #:7
`
`22.
`
`On information and belief, all digital subscribers provide Defendant with their IP
`
`address, which is a unique number assigned to all information technology connected devices,
`
`that informs Defendant as to subscribers’ city, zip code and physical location.
`
`23.
`
`Digital subscribers may provide to Defendant the identifier on their mobile
`
`devices and/or cookies stored on their devices.
`
`24. When opening an account, Defendant does not disclose to its digital subscribers
`
`that it will share their Personal Viewing Information with third parties, such as Facebook. Digital
`
`subscribers are also not asked to consent to such information sharing upon opening an account.
`
`25.
`
`After becoming a digital subscriber, viewers have access to a variety of Shudder
`
`Video Media on Defendant’s digital platform.
`
`26.
`
`Notably, once a digital subscriber signs in and watches Shudder Video Media, the
`
`digital subscriber is not provided with any notification that their Personal Viewing Information is
`
`being shared. Similarly, Defendant also fails to obtain digital subscribers’ written consent to
`
`collect their Personal Viewing Information “in a form distinct and separate from any form setting
`
`forth other legal or financial obligations of the consumer,” as the VPPA requires.
`
`C.
`
`Defendant Admits It Collects and Discloses Certain Personal Information of Digital
`Subscribers to Third Parties But Fails to Advise It Discloses Personal Viewing
`Information, as Required Under the VPPA.
`
`27.
`
`The operative Privacy Policy for Shudder states that it collects “Personal
`
`Information” from its users:
`
`“The information you provide us includes: identifiers (e.g., name, date of
`birth, postal or email address, phone number, account username and
`password, photograph); transactional information (e.g., cable provider,
`Services you subscribe to, content viewed, as well as your subscription
`dates and prices paid); content preferences (e.g., watch lists, preference
`settings, content limitations based on parental controls or other
`mechanisms); financial information (e.g., credit card information, payment
`history); communications content (e.g., your product ratings, comments,
`or questions submitted to us); location information (such as addresses you
`
`7
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 8 of 19 PageID #:8
`
`provide) and demographics (e.g., age gender, household information,
`education, occupation, and content preferences).4
`
`Shudder discloses in its Privacy Policy that it automatically collects “content
`
`28.
`
`interactions (including searches, views, downloads, prints, shares, streams, and display or
`
`playback details).”5
`
`29.
`
`Importantly, nowhere in Shudder’s Terms of Service or Privacy Policy is it
`
`disclosed that Defendant will share digital subscribers’ private and protected Personal Viewing
`
`Information with third parties, including Facebook.
`
`D.
`
`How Shudder Disseminates Digital Subscribers’ Personal Viewing Information
`
`1.
`
`Tracking Pixels
`
`30. Websites and apps use Facebook’s pixel and SDK to collect information about
`
`user’s devices and activities and send that to Facebook. Facebook then uses that information to
`
`show the user targeted ads.
`
`31.
`
`The Facebook tracking pixel, also known as a “tag” or “web beacon” among other
`
`names, is an invisible tool that tracks consumers’ actions on Facebook advertisers’ websites and
`
`reports them to Facebook. It is a version of the social plugin that gets “rendered” with code from
`
`Facebook. To obtain the code for the pixel, the website advertiser tells Facebook which website
`
`events it wants to track (e.g., Video Media) and Facebook returns corresponding Facebook pixel
`
`code for the advertiser to incorporate into its website.
`
`32.
`
`Defendant installed the Facebook tracking pixel, which enables it to disclose
`
`Plaintiff’s and Class Members’ Personal Viewing Information to Facebook, because it benefits
`
`financially from the advertising and information services that stem from use of the pixel. When a
`
`
`4 See Shudder Privacy Policy, available at https://www.shudder.com/privacy (Last Accessed:
`September 7, 2022)
`5 See id.
`
`8
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 9 of 19 PageID #:9
`
`Shudder digital subscriber enters the website and watches Video Media on the website, the
`
`website sends to Facebook certain information about the viewer, including, but not limited to,
`
`their identity and the media content the digital subscriber watched. Specifically, Shudder sends
`
`to Facebook the video content name, its URL, and, most notably, the viewers’ Facebook ID.
`
`2.
`
`33.
`
`Facebook ID (“FID”)
`
`An FID is a unique and persistent identifier that Facebook assigns to each user.
`
`With it, anyone ordinary person can look up the user’s Facebook profile and name. When a
`
`Facebook user with one or more personally identifiable FID cookies on their browser views
`
`Video Media from Shudder on the website or app, Shudder, through its website code, causes the
`
`digital subscribers identity and viewed Video Media to be transmitted to Facebook by the user’s
`
`browser. This transmission is not the digital subscribers decision, but results from Defendant’s
`
`purposeful use of its Facebook tracking pixel by incorporation of that pixel and code into
`
`Shudder’s website or App. Defendant could easily program the website and app so that this
`
`information is not automatically transmitted to Facebook when a subscriber views Video Media.
`
`However, it is not Defendant’s financial interest to do so because it benefits financially by
`
`providing this highly sought-after information.
`
`34.
`
`Notably, while Facebook can easily identify any individual on its Facebook
`
`platform with only their unique FID, so too can any ordinary person who comes into possession
`
`of an FID. Facebook admits as much on its website. Indeed, ordinary persons who come into
`
`possession of the FID can connect to any Facebook profile. Simply put, with only an FID and the
`
`video content name and URL – all of which Defendant knowingly and readily provides to
`
`Facebook without any consent from the digital subscribers – any ordinary person could learn the
`
`9
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 10 of 19 PageID #:10
`
`identity of the digital subscriber and the specific video or media content they requested on
`
`Shudder.
`
`35.
`
`At all relevant times, Defendant knew that the Facebook pixel disclosed Personal
`
`Viewing Information to Facebook. This was evidenced from, among other things, the
`
`functionality of the pixel, including that it enabled Shudder and accompanying app to show
`
`targeted advertising to its digital subscribers based on the products those digital subscriber’s had
`
`previously viewed on the website or app, including Video Media consumption, for which
`
`Defendant received financial remuneration.
`
`E.
`
`Shudder Unlawfully Discloses Its Digital Subscribers’ Personal Viewing
`Information to Facebook
`
`36.
`
`Defendant maintains a vast digital database comprised of its digital subscribers’
`
`Personal Viewing Information, including the names and e-mail addresses of each digital
`
`subscriber and information reflecting the Video Media that each of its digital subscribers viewed.
`
`37.
`
`Defendant is not sharing anonymized, non-personally identifiable data with
`
`Facebook. To the contrary, the data it discloses is tied to unique identifiers that track specific
`
`Facebook users. Importantly, the recipient of the Personal Viewing Information – Facebook –
`
`receives the Personal Viewing Information as one data point. Defendant has thus monetized its
`
`database by disclosing its digital subscribers’ Personal Viewing Information to Facebook in a
`
`manner allowing it to make a direct connection – without the consent of its digital subscribers
`
`and to the detriment of their legally protected privacy rights.
`
`38.
`
`Critically, the Personal Viewing Information Defendant discloses to Facebook
`
`allows Facebook to build from scratch or cross-reference and add to the data it already has in
`
`their own detailed profiles for its own users, adding to its trove of personally identifiable data.
`
`10
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 11 of 19 PageID #:11
`
`39.
`
`These factual allegations are corroborated by publicly available evidence. For
`
`instance, as shown in the screenshot below, a user visits Shudder and watches a movie called
`
`“Salem’s Lot”.
`
`Pictured above: The movie titled “Salem’s Lot” (taken from Shudder on or about September 8,
`2022).
`
`40.
`
`As demonstrated below, once the user clicks on and watches the video in the
`
`article, Shudder sends the content name of the video the digital subscriber watched, the URL,
`
`and the digital subscriber’s FID to Facebook.
`
`
`
`11
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 12 of 19 PageID #:12
`
`
`
`HTTP single communication session sent from the device to Facebook, reveals the video
`name, URL and the viewer’s FID (c_user field)
`
`41.
`
`As a result of Defendant’s data compiling and sharing practices, Defendant has
`
`knowingly disclosed to Facebook for its own personal profit the Personal Viewing Information
`
`of Defendant’s digital subscribers, together with additional sensitive personal information.
`
`42.
`
`Defendant does not seek its digital subscribers’ prior written consent to the
`
`disclosure of their Personal Viewing Information (in writing or otherwise) and its customers
`
`remain unaware that their Personal Viewing Information and other sensitive data is being
`
`disclosed to Facebook.
`
`43.
`
`By disclosing its digital subscribers Personal Viewing Information to Facebook –
`
`which undeniably reveals their identity and the specific video materials they requested from
`
`Defendant’s website – Defendant has intentionally and knowingly violated the VPPA.
`
`F.
`
`Disclosing Personal Viewing Information is Not Necessary
`
`44.
`
`Tracking pixels are not necessary for Defendant to operate Shudder’s digital news
`
`publications and sign-up digital subscriptions. They are deployed on Defendant’s website for the
`
`sole purpose of enriching Defendant and Facebook.
`
`12
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 13 of 19 PageID #:13
`
`45.
`
`Even if an on-line news publication found it useful to integrate Facebook tracking
`
`pixels, Defendant is not required to disclose Personal Viewing Information to Facebook. In any
`
`event, if Defendant wanted to do so, it must first comply with the strict requirements of VPPA,
`
`which it failed to do.
`
`G.
`
`Plaintiff’s Experiences
`
`46.
`
`Plaintiff Daineira Mangum has been a digital subscriber of Shudder from 2021 to
`
`the present. Plaintiff became a digital subscriber of Shudder by providing, among other
`
`information, her name, address, email address, IP address (which informs Defendant as to the
`
`city and zip code she resides in as well as her physical location), and any cookies associated with
`
`her device.
`
`47.
`
`Plaintiff has had a Facebook account since approximately 2010. From 2021 to the
`
`present, Plaintiff viewed Video Media via Shudder website.
`
`48.
`
`Plaintiff never consented, agreed, authorized, or otherwise permitted Defendant to
`
`disclose her Personal Viewing Information to Facebook. Plaintiff has never been provided any
`
`written notice that Defendant discloses its digital subscribers’ Personal Viewing Information, or
`
`any means of opting out of such disclosures of their Personal Viewing Information. Defendant
`
`nonetheless knowingly disclosed Plaintiff’s Personal Viewing Information to Facebook.
`
`49.
`
`Because Plaintiff is entitled by law to privacy in their Personal Viewing
`
`Information, Defendant’s disclosure of their Personal Viewing Information deprived Plaintiff of
`
`the full set of benefits to which she is entitled. Plaintiff did not discover that Defendant disclosed
`
`her Personal Viewing Information to Facebook until August 2022.
`
`13
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 14 of 19 PageID #:14
`
`CLASS ACTION ALLEGATIONS
`
`50.
`
`Plaintiff brings this action individually and on behalf of all others similarly
`
`situated as a class action under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil
`
`Procedure, on behalf of the following class (the “Class”):
`
`All persons in the United States with a digital subscription to an
`online website owned and/or operated by Defendant that had their
`Personal Viewing Information disclosed to Facebook by Defendant.
`
`51.
`
`Excluded from the Class are Defendant, their past or current officers, directors,
`
`affiliates, legal representatives, predecessors, successors, assigns and any entity in which any of
`
`them have a controlling interest, as well as all judicial officers assigned to this case as defined in
`
`28 USC § 455(b) and their immediate families.
`
`52.
`
`Numerosity. Members of the Class are so numerous and geographically dispersed
`
`that joinder of all members of the Class is impracticable. Plaintiff believes that there are
`
`hundreds of thousands of members of the Class widely dispersed throughout the United States.
`
`Class members can be identified from Defendant’s records and non-party Facebook’s records.
`
`53.
`
`Typicality. Plaintiff’s claims are typical of the claims of members of the Class.
`
`Plaintiff and members of the Class were harmed by the same wrongful conduct by Defendant in
`
`that Defendant caused Personal Viewing Information to be disclosed to Facebook without
`
`obtaining express written consent. Her claims are based on the same legal theories as the claims
`
`of other Class members.
`
`54.
`
`Adequacy. Plaintiff will fairly and adequately protect and represent the interests
`
`of the members of the Class. Plaintiff’s interests are coincident with, and not antagonistic to,
`
`those of the members of the Class. Plaintiff is represented by counsel with experience in the
`
`prosecution of class action litigation generally and in the emerging field of digital privacy
`
`litigation specifically.
`
`14
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 15 of 19 PageID #:15
`
`55.
`
`Commonality. Questions of law and fact common to the members of the Class
`
`predominate over questions that may affect only individual members of the Class because
`
`Defendant has acted on grounds generally applicable to the Class. Such generally applicable
`
`conduct is inherent in Defendant’s wrongful conduct. Questions of law and fact common to the
`
`Classes include:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`56.
`
`Whether Defendant knowingly disclosed Class members’ Personal Viewing
`Information to Facebook;
`
`Whether the information disclosed to Facebook concerning Class members’
`Personal Viewing Information constitutes personally identifiable information
`under the VPPA;
`
`Whether Defendant’s disclosure of Class members’ Personal Viewing
`Information to Facebook was knowing under the VPPA;
`
`Whether Class members consented to Defendant’s disclosure of their Personal
`Viewing Information to Facebook in the manner required by 18 U.S.C.
`§ 2710(b)(2)(B); and
`
`Whether the Class is entitled to damages as a result of Defendant’s conduct.
`
`Superiority. Class action treatment is a superior method for the fair and efficient
`
`adjudication of the controversy. Such treatment will permit a large number of similarly situated
`
`persons to prosecute their common claims in a single forum simultaneously, efficiently, and
`
`without the unnecessary duplication of evidence, effort, or expense that numerous individual
`
`actions would engender. The benefits of proceeding through the class mechanism, including
`
`providing injured persons or entities a method for obtaining redress on claims that could not
`
`practicably be pursued individually, substantially outweighs potential difficulties in management
`
`of this class action. Plaintiff knows of no special difficulty to be encountered in litigating this
`
`action that would preclude its maintenance as a class action.
`
`15
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 16 of 19 PageID #:16
`
`CLAIM FOR RELIEF
`FIRST CLAIM FOR RELIEF
`Violation of the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710
`Plaintiff incorporates the preceding paragraphs by reference as if fully set forth
`57.
`
`herein.
`
`58.
`
`The VPPA prohibits a “video tape service provider” from knowingly disclosing
`
`“personally-identifying information” concerning any consumer to a third-party without the
`
`“informed, written consent (including through an electronic means using the Internet) of the
`
`consumer.” 18 U.S.C § 2710.
`
`59.
`
`As defined in 18 U.S.C. § 2710(a)(4), a “video tape service provider” is “any
`
`person, engaged in the business, in or affecting interstate commerce, of rental, sale, or delivery of
`
`prerecorded video cassette tapes or similar audiovisual materials.”
`
`60.
`
`Defendant is a “video tape service provider” as defined in 18 U.S.C. § 2710(a)(4)
`
`because it engaged in the business of delivering audiovisual materials that are similar to
`
`prerecorded video cassette tapes and those sales affect interstate or foreign commerce.
`
`61.
`
`As defined in 18 U.S.C. § 2710(a)(3), “personally-identifiable information” is
`
`defined to include “information which identifies a person as having requested or obtained
`
`specific video materials or services from a video tape service provider.”
`
`62.
`
`Defendant knowingly caused Personal Viewing Information, including FIDs,
`
`concerning Plaintiff and Class members to be disclosed to Facebook. This information
`
`constitutes personally identifiable information under 18 U.S.C. § 2710(a)(3) because it identified
`
`each Plaintiff and Class member to Facebook as an individual who viewed Shudder Video
`
`Media, including the specific video materials requested from the website.
`
`16
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 17 of 19 PageID #:17
`
`63.
`
`As defined in 18 U.S.C. § 2710(a)(1), a “consumer” means “any renter, purchaser,
`
`or subscriber of goods or services from a video tape service provider.” As alleged in the
`
`preceding paragraphs, Plaintiff subscribed to a digital Shudder plan that provides Video Media
`
`content to the digital subscriber’s desktop, tablet, and mobile device. Plaintiff is thus a
`
`“consumer” under this definition.
`
`64.
`
`As set forth in 18 U.S.C. § 27109(b)(2)(B), “informed, written consent” must be
`
`(1) in a form distinct and separate from any form setting forth other legal or financial obligations
`
`of the consumer; and (2) at the election of the consumer, is either given at the time the disclosure
`
`is sought or given in advance for a set period of time not to exceed two years or until consent is
`
`withdrawn by the consumer, whichever is sooner.” Defendant failed to obtain informed, written
`
`consent under this definition.
`
`65.
`
`In addition, the VPPA creates an opt-out right for consumers in 18 U.S.C.
`
`§ 2710(2)(B)(iii). It requires video tape service providers to also “provide[] an opportunity for
`
`the consumer to withdraw on a case-by-case basis or to withdraw from ongoing disclosures, at
`
`the consumer’s election.” Defendant failed to provide an opportunity to opt out as required by
`
`the VPPA.
`
`66.
`
`Defendant knew that these disclosures identified Plaintiff and Class members to
`
`Facebook. Defendant also knew that Plaintiff’s and Class members’ Personal Viewing
`
`Information was disclosed to Facebook because, inter alia, Defendant chose, programmed, and
`
`intended for Facebook to receive the video content name, its URL, and, most notably, the digital
`
`subscribers’ FID.
`
`17
`
`

`

`Case: 1:22-cv-04857 Document #: 1 Filed: 09/08/22 Page 18 of 19 PageID #:18
`
`67.
`
`By disclosing Plaintiff’s and the Class’s Personal Viewing Information,
`
`Defendant violated Plaintiff’s and the Class members’ statutorily protected right to privacy in
`
`their video-watching habits. See 18 U.S.C. § 2710(c).
`
`68.
`
`As a result of the above violations, Defendant is liable to the Plaintiff and other
`
`Class members for actual damages related to their loss of privacy in an amount to be determined
`
`at trial or alternatively for “liquidated damages not less than $2,500 per plaintiff.” Under the
`
`statute, Defendant is also liable for reasonable attorney’s fees, and other litigation costs,
`
`injunctive and declaratory relief, and punitive damages in an amount to be determined by a jury,
`
`but sufficient to prevent the same or similar conduct by the Defendant in the future.
`
`VII. RELIEF REQUESTED
`Accordingly, Plaintiff, individually and on behalf of the proposed Class,
`69.
`
`respectfully requests that this court:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`Determine that this action may be maintained as a class action pursuant to
`Fed R. Civ. P. 23(a), (b)(2), and (b)(3) and declare Plaintiff as the
`representative of the Class and Plaintiff’s Counsel as Class Counsel;
`
`For an order declaring that Defendant’s conduct as described herein
`violates the federal VPPA, 18 U.S.C. § 2710(c)(2)(D);
`
`For Defendant to pay $2,500.00