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Klein Moynihan Turco LLP
Klein Moynihan Turco LLP (KMT) maintains an extensive practice, with an international client base, in the rapidly developing fields of Internet, telemarketing and mobile marketing law, sweepstakes and promotions law, gambling, fantasy sports and gaming law, data and consumer privacy law, intellectual property law and general corporate law.
As our readers are aware, a flurry of eavesdropping lawsuits have been filed in the wake of the Ninth Circuit decision in Javier v. Assurance IQ, LLC. A common refrain is that businesses are illegally gathering data by tracking and recording consumer website activity without consent.
United States
California
Privacy
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On April 2, 2025, the United States District Court for the
Northern District of California granted Defendant’s Motion to
Dismiss in Lakes et al. v. Ubisoft, Inc. In
Lakes, Among other eavesdropping claims, Plaintiffs
alleged that Defendant violated the Video Privacy Protection Act
(“VPPA”) and California Invasion of Privacy Act
(“CIPA”) by: 1) disclosing their personally
identifiable information (“PII”) to a third party; and 2)
enabling this third party to intercept their communications with
Defendant without their knowledge or consent. As compensation for
the alleged harm, Plaintiffs sought statutory damages and
injunctive relief, together with reasonable attorneys’ fees and
costs. Among its other findings, the Court ruled that Plaintiffs
had, in fact, provided their consent to the subject capture and
disclosure of their personal information. Because consent is a
complete defense to the various privacy claims alleged by
Plaintiffs, the Court dismissed their VPPA lawsuit.
As our readers are aware, a flurry of
eavesdropping lawsuits have been filed in the wake of the Ninth
Circuit decision in Javier v. Assurance IQ,
LLC. A common refrain is that businesses are illegally
gathering data by tracking and recording consumer website activity
without consent. As was the case in Lakes, many plaintiffs
allege privacy law violations after accessing websites that utilize
Meta Pixels. The Order dismissing the
Lakes VPPA lawsuit highlights the importance of obtaining
consumer consent before utilizing Meta Pixels, or any other website
tracking technology.
What is the VPPA?
The VPPA, a federal privacy statute enacted in 1998, was
originally drafted to protect consumers who did business with video
tape service providers. Although the vast majority of consumers no
longer rent video tapes, the last few years have seen a spike in
VPPA lawsuits. Plaintiffs are now alleging violations of the VPPA
against websites that provide video content.
To properly state a VPPA claim, a plaintiff must demonstrate
that: “(1) the defendant disclosed ‘personally
identifiable information concerning any customer’ to ‘any
person,’ (2) the disclosure was made knowingly, (3) the
disclosure was not authorized”, and (4) the defendant is a
“video tape service provider” within the meaning of the
statute. Under the VPPA, a “video tape service provider”
is a person or entity engaged in the business of rental, sale, or
delivery of “prerecorded video cassette tapes or similar audio
visual materials,” or one that receives a consumer’s PII
from a video tape service provider.
The VPPA allows a video tape service provider to disclose a
consumer’s PII if the disclosure is made with a consumer’s
“informed, written consent.” “Informed, written
consent” must be: 1) obtained in a form separate and distinct
from any form setting forth other legal or financial obligations of
the consumer; 2) provided at the time of disclosure or in advance
for a set period of time not to exceed two years; and 3)
accompanied with an opt out provision.
Why did the Court Dismiss Plaintiffs’ VPPA Lawsuit
Defendant operates a website that allows consumers to purchase
video games containing pre-recorded audiovisual content. Plaintiffs
claimed that Defendant violated the VPPA by utilizing Meta Pixels
on its website to record and subsequently disclose PII to third
parties for marketing purposes. Defendant argued that Plaintiffs
failed to state a VPPA claim because they consented to the tracking
activity upon arrival at the website (via a cookie banner), during
account creation, and while purchasing Defendant’s
products.
The Court found that: 1) the cookie banner satisfied the
“informed, written” requirement of the VPPA; 2) the
Website Privacy Policy contained the requisite consent disclosures,
including opt out provisions, in a form “distinct and
separate” from other legal obligations; and, most importantly,
3) that Plaintiffs provided their consent to the allegedly
violative conduct each and every time that they completed a
transaction on the subject website, including during account
creation. Accordingly, it dismissed Plaintiffs’ claims in their
entirety.
Obtain Consumer Consent When Utilizing Website Tracking
Technology
Lawsuits filed pursuant to the VPPA and other consumer data
privacy statutes are on the rise. The takeaway from Lakes
is clear: to safeguard against being named in a VPPA lawsuit,
businesses should: 1) provide consumers with adequate disclosures
concerning their use of third-party tracking technology; and 2)
obtain informed consumer consent to the use of such tracking
technology. The attorneys at Klein Moynihan Turco have decades of
experience in: 1) defending clients against lawsuits involving
consumer protection statutes; and 2) keeping clients compliant with
federal and state consumer privacy and marketing laws.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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