Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`
`CRYSTAL CARTER, SUSAN CIFELLI, and
`LETITIA TAYLOR, individually and on
`behalf of all others similarly situated,
`
`
` Plaintiffs,
`
`
`
`
`Case No.
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`CLASS ACTION COMPLAINT
`
`JURY TRIAL DEMANDED
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`v.
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`DISCOVERY COMMUNICATIONS, LLC,
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` Defendant.
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`
`
`
`
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`Plaintiffs Crystal Carter, Susan Cifelli, and Letitia Taylor (“Plaintiffs”), individually and
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`on behalf of all other persons similarly situated, by and through their attorneys, make the following
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`allegations pursuant to the investigation of their counsel and based upon information and belief,
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`except as to allegations specifically pertaining to themselves and their counsel, which are based
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`on personal knowledge.
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`NATURE OF THE ACTION
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`1.
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`This is a class action suit brought on behalf of all persons with Facebook accounts
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`who watch videos on hgtv.com and subscribe to HGTV’s newsletter.
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`2.
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`Discovery Communications, LLC (“Defendant” or “HGTV”) develops, owns, and
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`operates hgtv.com, a website that hosts and delivers hundreds of videos1 featuring “home and
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`lifestyle content.”2 The website’s content is popular among viewers, “attract[ing] an average of
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`9.9 million people each month.”3
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`1 HGTV, VIDEOS, https://www.hgtv.com/videos.
`2 DISCOVERY, HGTV SERIES ‘GOOD BONES’ DELIVERS STRONG SEASON
`PERFORMANCES IN KEY DEMOS, https://press.discovery.com/us/hgtv/press-
`releases/2021/hgtv-series-good-bones-delivers-strong-season-5558/.
`3 Id.
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`1
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 2 of 25
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`3.
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`Defendant monetizes its website by knowingly collecting and disclosing its
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`subscribers’ personally identifiable information—including a record of every video clip they
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`view—to Facebook without consent.
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`4.
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`The United States Congress passed the Video Privacy Protection Act (“VPPA”) in
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`1988, seeking to confer onto consumers the power to “maintain control over personal
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`information divulged and generated in exchange for receiving services from video tape service
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`providers.” S. Rep. No. 100-599, at 8. “The Act reflects the central principle of the Privacy Act
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`of 1974: that information collected for one purpose may not be used for a different purpose
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`without the individual’s consent.” Id.
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`5.
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`Defendant violated the VPPA by knowingly transmitting Plaintiffs’ and the
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`putative class’s personally identifiable information to unrelated third parties.
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`FACTUAL BACKGROUND
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`The VPPA
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`6.
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`The origins of the VPPA begin with President Ronald Reagan’s nomination of
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`I.
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`Judge Robert Bork to the United States Supreme Court. During the confirmation process, a
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`movie rental store disclosed the nominee’s rental history to the Washington City Paper, who then
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`published that history. Congress responded by passing the VPPA, with an eye toward the digital
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`future. As Senator Patrick Leahy, who introduced the Act, explained:
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`It is nobody’s business what Oliver North or Robert Bork or Griffin Bell or Pat
`Leahy watch on television or read or think about when they are home. In an area
`of interactive television cables, the growth of computer checking and check-out
`counters, of security systems and telephones, all lodged together in computers, it
`would be relatively easy at some point to give a profile of a person and tell what
`they buy in a store, what kind of food they like, what sort of television programs
`they watch, who are some of the people they telephone. I think that is wrong.
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`S. Rep. 100-599, at 5-6 (internal ellipses and brackets omitted).
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`2
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 3 of 25
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`7.
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`The VPPA prohibits “[a] video tape service provider who knowingly discloses, to
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`any person, personally identifiable information concerning any consumer of such provider.” 18
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`U.S.C. § 2710(b)(1). The VPPA defines personally identifiable information as “information
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`which identifies a person as having requested or obtained specific video materials or services
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`from a video service provider.” 18 U.S.C. § 2710(a)(3). A video tape service provider is “any
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`person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or
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`delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. §
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`2710(a)(4).
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`II.
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`The Facebook Tracking Pixel
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`8.
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`Facebook is the largest social networking site on the planet, touting 2.9 billion
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`monthly active users.4 Facebook describes itself as a “real identity platform,”5 meaning users
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`are allowed only one account and must share “the name they go by in everyday life.”6 To that
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`end, when creating an account, users must provide their first and last name, along with their
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`birthday and gender.7
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`9.
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`Facebook generates revenue by selling advertising space on its website.8
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`4 Sean Burch, Facebook Climbs to 2.9 Billion Users, Report 29.1 Billion in Q2 Sales, YAHOO
`(July 28, 2021), https://www.yahoo.com/now/facebook-climbs-2-9-billion-202044267.html
`5 Sam Schechner and Jeff Horwitz, How Many Users Does Facebook Have? The Company
`Struggles to Figure It Out, WALL. ST. J. (Oct. 21, 2021).
`6 FACEBOOK, COMMUNITY STANDARDS, PART IV INTEGRITY AND AUTHENTICITY,
`https://www.facebook.com/communitystandards/integrity_authenticity.
`7 FACEBOOK, SIGN UP, https://www.facebook.com/
`8 Mike Isaac, Facebook’s profit surges 101 percent on strong ad sales., N.Y. TIMES (July 28,
`2021), https://www.nytimes.com/2021/07/28/business/facebook-q2-earnings.html.
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`3
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 4 of 25
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`10.
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` Facebook sells advertising space by highlighting its ability to target users.9
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`Facebook can target users so effectively because it surveils user activity both on and off its site.10
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`This allows Facebook to make inferences about users beyond what they explicitly disclose, like
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`their “interests,” “behavior,” and “connections.”11 Facebook compiles this information into a
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`generalized dataset called “Core Audiences,” which advertisers use to apply highly specific
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`filters and parameters for their targeted advertisements.12
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`11.
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`Advertisers can also build “Custom Audiences.”13 Custom Audiences enable
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`advertisers to reach “people who have already shown interest in [their] business, whether they’re
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`loyal customers or people who have used [their] app or visited [their] website.”14 Advertisers can
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`use a Custom Audience to target existing customers directly, or they can use it to build a
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`“Lookalike Audiences,” which “leverages information such as demographics, interests, and
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`behavior from your source audience to find new people who share similar qualities.”15 Unlike
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`Core Audiences, Custom Audiences require an advertiser to supply the underlying data to
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`Facebook. They can do so through two mechanisms: by manually uploading contact information
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`
`9 FACEBOOK, WHY ADVERTISE ON FACEBOOK,
`https://www.facebook.com/business/help/205029060038706.
`10 FACEBOOK, ABOUT FACEBOOK PIXEL,
`https://www.facebook.com/business/help/742478679120153?id=1205376682832142.
`11 FACEBOOK, AD TARGETING: HELP YOUR ADS FIND THE PEOPLE WHO WILL LOVE YOUR BUSINESS,
`https://www.facebook.com/business/ads/ad-targeting.
`12 FACEBOOK, EASIER, MORE EFFECTIVE WAYS TO REACH THE RIGHT PEOPLE ON FACEBOOK,
`https://www.facebook.com/business/news/Core-Audiences.
`13 FACEBOOK, ABOUT CUSTOM AUDIENCES,
`https://www.facebook.com/business/help/744354708981227?id=2469097953376494.
`14 FACEBOOK, ABOUT EVENTS CUSTOM AUDIENCE,
`https://www.facebook.com/business/help/366151833804507?id=300360584271273.
`15 FACEBOOK, ABOUT LOOKALIKE AUDIENCES,
`https://www.facebook.com/business/help/164749007013531?id=401668390442328.
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`4
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 5 of 25
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`for customers, or by utilizing Facebook’s “Business Tools,” which collect and transmit the data
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`automatically.16 One such Business Tool is the Facebook Tracking Pixel.
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`12.
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`The Facebook Tracking Pixel is a piece of code that advertisers, like Defendant,
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`can integrate into their website. Once activated, the Facebook Tracking Pixel “tracks the people
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`and type of actions they take.”17 When the Facebook Tracking Pixel captures an action, it sends
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`a record to Facebook. Once this record is received, Facebook processes it, analyzes it, and
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`assimilates it into datasets like the Core Audiences and Custom Audiences.
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`13.
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`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 pages a
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`visitor views.18 Advertisers can also configure the Facebook Tracking Pixel to track other
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`events. Facebook offers a menu of “standard events” from which advertisers can choose,
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`including what content a visitor views or purchases.19 An advertiser can also create their own
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`tracking parameters by building a “custom event.”20
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`14.
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`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 “Pixel-
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`16 FACEBOOK, CREATE A CUSTOMER LIST CUSTOM AUDIENCE,
`https://www.facebook.com/business/help/170456843145568?id=2469097953376494;
`FACEBOOK, CREATE A WEBSITE CUSTOM AUDIENCE,
`https://www.facebook.com/business/help/1474662202748341?id=2469097953376494.
`17 FACEBOOK, RETARGETING, https://www.facebook.com/business/goals/retargeting.
`18 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.
`19 FACEBOOK, SPECIFICATIONS FOR FACEBOOK PIXEL STANDARD EVENTS,
`https://www.facebook.com/business/help/402791146561655?id=1205376682832142.
`20 FACEBOOK, ABOUT STANDARD AND CUSTOM WEBSITE EVENTS,
`https://www.facebook.com/business/help/964258670337005?id=1205376682832142.
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`5
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 6 of 25
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`specific Data.”21 HTTP Headers collect “IP addresses, information about the web browser, page
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`location, document, referrer and persons using the website.”22 Pixel-specific Data includes “the
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`Pixel ID and cookie.”23
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`II.
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`HGTV And The Facebook Pixel
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`HGTV’s website hosts and delivers hundreds of videos.
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`HGTV hosts the Facebook Tracking Pixel and transmits nine distinct events to
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`15.
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`16.
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`Facebook:24
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` Figure 1
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`
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`17.
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`Each metric independently and jointly permits an ordinary person to identify a
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`video and the video’s content.
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`//
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`21 FACEBOOK, FACEBOOK PIXEL, https://developers.facebook.com/docs/facebook-pixel/.
`22 Id.
`23 Id.
`24 This data derives from a tool created and offered by Facebook.
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`6
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 7 of 25
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`18.
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`PageView discloses a video’s URL whenever a viewer accesses that webpage.
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`Figure 2
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`19.
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`ViewContent likewise discloses that video’s URL.
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`Figure 3
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`7
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 8 of 25
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`20. Microdata and Button Click also discloses the video’s title.
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`Figures 4 & 5
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`21.
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`VideoAdStart and VideoAdComplete discloses when a viewer starts and finishes
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`the advertisement that plays before the video.
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`Figures 6 & 7
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`8
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 9 of 25
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`22.
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`VideoContentStart and VideoContentComplete register and disclose when a
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`viewer starts and finishes the video’s content.
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`Figures 8 & 9
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`
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`23.
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`All eight events, independently and jointly, permit an ordinary person to identify a
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`video’s content, title, and URL.
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`24. When a visitor watches a video on hgtv.com while logged into Facebook, HGTV
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`compels a visitor’s browser to transmit the c_user cookie to Facebook. The c_user cookie
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`contains that visitor’s unencrypted Facebook ID. When accessing the above video, for example,
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`HGTV compelled the browser to send eight cookies:
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`Figure 10
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`
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`9
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 10 of 25
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`25. When a visitor’s browser has recently logged out of Facebook, HGTV will
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`compel the browser to send a smaller set of cookies:25
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`Figure 11
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`
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`26.
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`The fr cookie contains, at least, an encrypted Facebook ID and browser
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`identifier.26 The _fbp cookie contains, at least, an unencrypted value that uniquely identifies a
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`browser.27 The datr cookies also identifies a browser. 28 Facebook, at a minimum, uses the fr
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`and _fbp cookies to identify users.29
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`27.
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`If a visitor has never created a Facebook account, HGTV transmits three cookies,
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`two of which are visible here:30
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`Figure 12
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`
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`28. Without a corresponding Facebook ID, the fr cookie contains, at least, an
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`abbreviated and encrypted value that identifies the browser. The _fbp cookie contains, at least,
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`25 The _fbp cookie, visible in Figure 10, is not shown here but is still transmitted.
`26 DATA PROTECTION COMMISSIONER, FACEBOOK IRELAND LTD, REPORT OF RE-AUDIT (Sept. 21,
`2012), http://www.europe-v-facebook.org/ODPC_Review.pdf.
`27 FACEBOOK, CONVERSION API, https://developers.facebook.com/docs/marketing-
`api/conversions-api/parameters/fbp-and-fbc/.
`28 FACEBOOK, COOKIES & OTHER STORAGE TECHNOLOGIES,
`https://www.facebook.com/policy/cookies/.
`29 FACEBOOK, COOKIES & OTHER STORAGE TECHNOLOGIES,
`https://www.facebook.com/policy/cookies/.
`30 The _fbp cookie, visible in Figure 10, is not shown here but is still transmitted.
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`10
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 11 of 25
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`an unencrypted value that uniquely identifies a browser. Facebook uses both for targeted
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`advertising.
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`29.
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`The fr cookie will expire after 90 days unless the visitor’s browser logs back into
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`Facebook.31 If that happens, the time resets, and another 90 days begins to accrue.32
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`30.
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`The _fbp cookie will expire after 90 days unless the visitor’s browser accesses the
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`same website.33 If that happens, the time resets, and another 90 days begins to accrue.34
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`31.
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`The Facebook Tracking Pixel uses both first- and third-party cookies. A first-
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`party cookie is “created by the website the user is visiting”—i.e., HGTV.35 A third-party cookie
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`is “created by a website with a domain name other than the one the user is currently visiting”—
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`i.e., Facebook.36 The _fbp cookie is always transmitted as a first-party cookie. A duplicate _fbp
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`cookie is sometimes sent as a third-party cookie, depending on whether the browser has recently
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`logged into Facebook.
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`32.
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`Facebook, at a minimum, uses the fr, _fbp, and c_user cookies to link to Facebook
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`IDs and corresponding Facebook profiles.
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`33.
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`A Facebook ID is personally identifiable information. Anyone can identify a
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`Facebook profile—and all personal information publicly listed on that profile—by appending the
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`Facebook ID to the end of Facebook.com.
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`31 See FACEBOOK, COOKIES & OTHER STORAGE TECHNOLOGIES,
`https://www.facebook.com/policy/cookies/.
`32 Confirmable through developer tools.
`33 See FACEBOOK, COOKIES & OTHER STORAGE TECHNOLOGIES,
`https://www.facebook.com/policy/cookies/.
`34 Also confirmable through developer tools.
`35 PC MAG, FIRST-PARTY COOKIES, https://www.pcmag.com/encyclopedia/term/first-party-
`cookie. This is confirmable by using developer tools to inspect a website’s cookies and track
`network activity.
`36 PC MAG, THIRD-PARTY COOKIES, https://www.pcmag.com/encyclopedia/term/third-party-
`cookie. This is also confirmable by tracking network activity.
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`11
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 12 of 25
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`34.
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`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 HGTV
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`videos a user has watched.37
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`35.
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`HGTV also uses “Automatic Advanced Matching.” When activated, the
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`Facebook Tracking Pixel “look[s] for recognizable form field and other sources on your website
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`that contain information such as first name, last name and email.” 38 The Facebook Tracking
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`Pixel’s code collect[s] that information, “along with the event, or action, that took place.”39 This
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`information is “hashed,”40 meaning it is “[a] computed summary of digital data that is a one-way
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`process.”41 In other words, it “cannot be reversed back into the original data.”42
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`36.
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`HGTV discloses this information so it can better match visitors to their Facebook
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`profiles, which thereby allows HGTV to better track analytics and target its advertisements:
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`Figure 13
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`37 FACEBOOK, GET STARTED, https://developers.facebook.com/docs/meta-pixel/get-started.
`38 https://www.facebook.com/business/help/611774685654668?id=1205376682832142
`39 FACEBOOK, ABOUT ADVANCED MATCHING FOR WEB,
`https://www.facebook.com/business/help/611774685654668?id=1205376682832142.
`40 DEFINITION OF HASH, https://www.pcmag.com/encyclopedia/term/hash
`41 Id.
`42 Id.
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`12
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`37.
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`HGTV’s Facebook Tracking Pixel is configured to scan form fields containing a
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`user’s email, first name, last name, gender, phone number, city, state, and zip code:43
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`Figure 14
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`
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`38.
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`Every individual who subscribes to HGTV’s newsletter must input an email
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`address.
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`Figure 15
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`
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`39.
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`HGTV discloses a subscriber’s email address whenever they input it into the form
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`field.
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`40.
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`HGTV knows Facebook will match the Advanced Matching parameters with a
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`subscriber’s subsequent activity, thereby helping HGTV “[i]ncrease the number of attributed
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`43 Facebook provides a corresponding look-up table: FACEBOOK, ADVANCED MATCHING,
`https://developers.facebook.com/docs/meta-pixel/advanced/advanced-matching.
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`13
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 14 of 25
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`conversions,” “[i]ncrease [its] Custom Audience size,” and “[d]ecrease the cost per
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`conversion.”44
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`41.
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`HGTV also discloses to Facebook that an individual has subscribed to the
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`newsletter in the first place.
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`Figure 16
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`//
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`//
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`//
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`//
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`//
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`//
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`44 FACEBOOK, ABOUT ADVANCED MATCHING FOR WEB,
`https://www.facebook.com/business/help/611774685654668?id=1205376682832142.
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`14
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 15 of 25
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`42.
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`After providing their email address, subscribers must select each newsletter
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`they’d like to receive.
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`Figure 16
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`
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`43.
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`The principal purpose of the newsletter is to drive traffic to HGTV’s website.
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`The overwhelming amount of content featured in the newsletter links back to articles and videos
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`on hgtv.com.
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`Figure 17
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`15
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 16 of 25
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`44.
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`By subscribing to HGTV’s newsletter, Plaintiffs subscribed to “goods or services
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`from a video tape service provider.” 18 U.S.C. § 2710.
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`45.
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`By compelling a visitor’s browser to disclose the Advanced Matching parameters
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`alongside event data for videos, HGTV knowingly discloses information sufficiently permitting
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`an ordinary person to identify a specific individual’s video viewing behavior.
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`46.
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`By compelling a visitor’s browser to disclose the c_user cookie alongside event
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`data for videos, HGTV knowingly discloses information sufficiently permitting an ordinary
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`person to identify a specific individual’s video viewing behavior.
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`47.
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`By compelling a visitor’s browser to disclose the fr and _fbp cookies alongside
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`event data for videos, HGTV discloses information sufficiently permitting an ordinary person to
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`identify a specific individual’s video viewing behavior.
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`48.
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`By compelling a visitor’s browser to disclose the fr cookie and other browser
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`identifiers alongside event data for videos, HGTV discloses information sufficiently permitting
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`an ordinary person to identify a specific individual’s video viewing behavior.
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`//
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`//
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`//
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`//
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`//
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`//
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`16
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`49.
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`Facebook confirms that it matches activity on HGTV with a user’s profile.
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`Facebook allows users to download their “off-site activity,” which is a “summary of activity that
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`businesses and organizations share with us about your interactions, such as visiting their apps or
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`websites.”45 Here, the off-site activity report confirms HGTV identifies an individual’s video
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`viewing activities:
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`Figure 18
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`50.
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`The “ID” shown here is the same Facebook Pixel ID visible in the first image.
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`The Facebook Pixel ID is a numerical code that uniquely identifies each Pixel.46 In practice, this
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`means HGTV’s Facebook Tracking Pixel has a Pixel ID that differs from all other websites. All
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`subscribers who view videos on hgtv.com can pull their off-site activity report and see the same
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`Pixel ID.
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`III.
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`Experience of Plaintiff Crystal Carter
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`51.
`
`52.
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`In 2010, Plaintiff Carter created a Facebook account.
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`From 2018 to February 2022, Plaintiff Carter enrolled in Defendant’s newsletter.
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`During that same time period, Plaintiff Carter watched videos on hgtv.com. Defendant disclosed
`
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`45 FACEBOOK, WHAT IS OFF-FACEBOOK ACTIVITY?,
`https://www.facebook.com/help/2207256696182627. As discussed there, the 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.”
`46 FACEBOOK, GET STARTED, https://developers.facebook.com/docs/meta-pixel/get-started.
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`17
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 18 of 25
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`her event data, which recorded and disclosed the video’s title and content, along with every time
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`Plaintiff Carter paused a video, played a video, started a video, or completed a video.
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`53. When Plaintiff Carter first subscribed, she entered her email address. Defendant
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`then disclosed this identifier to Facebook, along with her Facebook ID and other identifying
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`information, like identifiers for her browser.
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`54. When Plaintiff Carter watched videos on hgtv.com, Defendant disclosed event
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`data to Facebook, knowing Facebook would combine that data with the identifiers. By doing so,
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`HGTV disclosed Plaintiff Carter’s PII to a third-party.
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`55.
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`Plaintiff Carter discovered that HGTV surreptitiously collected and transmitted
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`her personally identifiable information in February 2022.
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`IV.
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`56.
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`57.
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`Experience of Plaintiff Susan Cifelli
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` In 2010, Plaintiff Cifelli created a Facebook account.
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`In approximately 2010, Plaintiff Cifelli enrolled in Defendant’s newsletter. Since
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`then, Plaintiff Cifelli has watched videos on hgtv.com. Defendant disclosed her event data,
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`which recorded and disclosed the video’s title and content, along with every time Plaintiff Cifelli
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`paused a video, played a video, started a video, or completed a video.
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`58.
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` When Plaintiff Cifelli first subscribed, she entered her email address. Defendant
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`then disclosed this identifier to Facebook, along with her Facebook ID and other identifying
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`information, like identifiers for her browser.
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`59. When Plaintiff Cifelli watched videos on hgtv.com, Defendant disclosed event
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`data to Facebook, knowing Facebook would combine that data with the identifiers. By doing so,
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`HGTV disclosed Plaintiff Cifelli’s PII to a third-party.
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 19 of 25
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`60.
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`Plaintiff Cifelli discovered that HGTV surreptitiously collected and transmitted
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`her personally identifiable information in February 2022.
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`V.
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`61.
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`62.
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`Experience of Plaintiff Letitia Taylor
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` In or around 2007, Plaintiff Taylor created a Facebook account.
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`From approximately 2019 to 2021, Plaintiff Taylor enrolled in Defendant’s
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`newsletter. During that same time period, Plaintiff Taylor watched videos on hgtv.com.
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`Defendant disclosed her event data, which recorded and disclosed the video’s title and content,
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`along with every time Plaintiff Taylor paused a video, played a video, started a video, or
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`completed a video.
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`63. When Plaintiff Taylor first subscribed, she entered her email address. Defendant
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`then disclosed this identifier to Facebook, along with her Facebook ID and other identifying
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`information, like identifiers for her browser.
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`64. When Plaintiff Taylor watched videos on hgtv.com, Defendant disclosed event
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`data to Facebook, knowing Facebook would combine that data with the identifiers. By doing so,
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`HGTV disclosed Plaintiff Taylor’s PII to a third-party.
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`65.
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`Plaintiff Taylor discovered that HGTV surreptitiously collected and transmitted
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`her personally identifiable information in February 2022.
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`PARTIES
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`66.
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`Plaintiff Carter is, and has been at all relevant times, a resident of New York, New
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`York and has an intent to remain there, and is therefore a domiciliary of New York.
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`67.
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`Plaintiff Cifelli is, and has been at all relevant times, a resident of Vernon, New
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`Jersey and has an intent to remain there, and is therefore a domiciliary of New Jersey.
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`68.
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`Plaintiff Taylor is, and has been at all relevant times, a resident of Georgetown,
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 20 of 25
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`Delaware and has an intent to remain there, and is therefore a domiciliary of Delaware.
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`69.
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`Defendant Discovery Communications, LLC is a Delaware corporation with its
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`principal place of business at 230 Park Avenue South New York, NY 10001. Defendant
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`develops, owns, and operates hgtv.com, which is used throughout New York and the United
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`States.
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`JURISDICTION AND VENUE
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`70.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1331 because it arises under a law of the United States (the VPPA).
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`71.
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`This Court has personal jurisdiction over Defendant because Defendant’s
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`principal place of business is in New York, New York.
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`72.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because a substantial
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`part of the events or omissions giving rise to the claim occurred in this District.
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`CLASS ALLEGATIONS
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`73.
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`Class Definition: Plaintiffs seek to represent a class of similarly situated
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`individuals defined as all persons in the United States who have a Facebook account, subscribed
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`to HGTV’s newsletter, and viewed videos on HGTV’s website (the “Class”).
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`74.
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`Subject to additional information obtained through further investigation and
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`discovery, the above-described Class may be modified or narrowed as appropriate, including
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`through the use of multi-state subclasses.
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`75.
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`Numerosity (Fed. R. Civ. P. 23(a)(1)): At this time, Plaintiffs do not know the
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`exact number of members of the aforementioned Class. However, given the popularity of
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`Defendant’s website, the number of persons within the Class is believed to be so numerous that
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`joinder of all members is impractical.
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`20
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 21 of 25
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`76.
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`Commonality and Predominance (Fed. R. Civ. P. 23(a)(2), 23(b)(3)): There is
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`a well-defined community of interest in the questions of law and fact involved in this case.
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`Questions of law and fact common to the members of the Class that predominate over questions
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`that may affect individual members of the Class include:
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`(a) whether Defendant collected Plaintiffs’ and the Class’s PII;
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`(b) whether Defendant unlawfully disclosed and continues to disclose its
`users’ PII in violation of the VPPA;
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`(c) whether Defendant’s disclosures were committed knowingly; and
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`(d) whether Defendant disclosed Plaintiffs’ and the Class’s PII without
`consent.
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`77.
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`Typicality (Fed. R. Civ. P. 23(a)(3)): Plaintiffs’ claims are typical of those of
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`
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`the Class because Plaintiffs, like all members of the Class, used HGTV’s website to watch
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`videos, and had their PII collected and disclosed by Defendant.
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`78.
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`Adequacy (Fed. R. Civ. P. 23(a)(4)): Plaintiffs have retained and are represented
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`by qualified and competent counsel who are highly experienced in complex consumer class
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`action litigation, including litigation concerning the VPPA and its state-inspired offspring.
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`Plaintiffs and their counsel are committed to vigorously prosecuting this class action. Moreover,
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`Plaintiffs are able to fairly and adequately represent and protect the interests of the Class.
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`Neither Plaintiffs nor their counsel have any interest adverse to, or in conflict with, the interests
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`of the absent members of the Class. Plaintiffs have raised viable statutory claims or the type
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`reasonably expected to be raised by members of the Class, and will vigorously pursue those
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`claims. If necessary, Plaintiffs may seek leave of this Court to amend this Class Action
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`Complaint to include additional representatives to represent the Class, additional claims as may
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`be appropriate, or to amend the definition of the Class to address any steps that Defendant took.
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`21
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 22 of 25
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`79.
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`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 individual
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`litigation of the claims of all members of the Class is impracticable. Even if every member of
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`the Class could afford to pursue individual litigation, the court system could not. It would be
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`unduly burdensome to the courts in which individual litigation of numerous cases would
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`proceed. Individualized litigation would also present the potential for varying, inconsistent or
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`contradictory judgments, and would magnify the delay and expense to all parties and to the court
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`system resulting from multiple trials of the same factual issues. By contrast, the maintenance of
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`this action as a class action, with respect to some or all of the issues presented herein, presents
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`few management difficulties, conserves the resources of the parties and of the court system and
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`protects the rights of each member of the Class. Plaintiffs anticipate no difficulty in the
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`management of this action as a class action.
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`CAUSES OF ACTION
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`COUNT I
`VIOLATION OF THE VIDEO PRIVACY PROTECTION ACT
`18 U.S.C. § 2710, et seq.
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`Plaintiffs hereby incorporate by reference the allegations contained in all
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`80.
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`preceding paragraphs of this complaint.
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`81.
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`Plaintiffs bring this claim individually and on behalf of the members of the
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`proposed Class against Defendant.
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`82.
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`Defendant is a “video tape service provider” because it creates, hosts, and delivers
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`hundreds of videos on its website, thereby “engag[ing] in the business, in or affecting interstate
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`or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar
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`audio visual materials.” 18 U.S.C. § 2710(a)(4). In particular, Defendant solicits individuals to
`
`22
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`Case 1:22-cv-02031-PGG Document 1 Filed 03/11/22 Page 23 of 25
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`subscribe to their newsletter that advertises and promotes videos and articles on its website,
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`hgtv.com.
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`83.
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`Plaintiffs and members of the Class are “consumers” because they subscribed to
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`HGTV’s newsletter. 18 U.S.C. § 2710(a)(1).
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`84.
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`HGTV disclosed to a third party, Facebook, Plaintiffs’ and the Class members’
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`personally identifiable information. HGTV utilized the Facebook Tracking Pixel to compel
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`Plaintiffs’ web browser to transfer Plaintiffs’ identifying information, like their Facebook ID,
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`along with Plaintiffs’ event data, like the title of the videos they viewed.
`
`85.
`
`86.
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`Plaintiffs and the Class members viewed video clips using HGTV’s website.
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`HGTV knowingly disclosed Plaintiffs’ PII because it used that data to build
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`audiences on Facebook and retarget them for its advertising campaigns.
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`87.
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`Plaintiffs and Class members did not provide Defendant with any form of
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`consent—either written or otherwise—to disclose their PII to third parties.
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`88.
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`Nor were Defendant’s disclosures made in the “ordinary course of business” as
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`the term is defined by the VPPA. In particular, HGTV’s disclosures to Facebook were not
`
`necessary for “debt collection activities, order fulfillm