Chive Media Moves to Dismiss Plaintiff’s VPPA Claim, Strike His Class Allegations

Defendant Chive Media Group seeks to dismiss plaintiff Gregory Roland’s Video Privacy Protection Act complaint for failure to state a claim, or in the alternative to strike Roland’s class allegations, said its combined motions Monday (docket 1:23-cv-00389) in U.S. District Court for Western Texas in Austin.

Roland’s putative class action alleges Chive violated the VPPA by knowingly sharing his viewing data with Meta, but Chive asserts Roland acquiesced to a “valid forum-selection clause” to litigate his claims in the Western District of Texas where Chive is headquartered when he agreed to its terms and conditions (see 2303240008). Roland consented to the transfer in late March without waiving any rights (see 2304030031).

The class action “alleges a novel theory of relief unseen and untested” in the Western District of Texas, said Chive’s combined motions. His case invokes the VPPA, “a 35-year-old federal statute designed to prevent movie-rental stores from disclosing customers’ rental histories without authorization,” they said. Roland “seeks to capitalize on his voluntary use of Chive’s website to recover liquidated damages of $2,500 on behalf of himself and an unknown number of class members,” they said.

The “subtext” of Roland’s lawsuit is clear, said Chive’s motions. Though the brick-and-mortar rental stores of a “bygone analog era” may have vanished, the VPPA “should be contorted beyond all legislative intent to apply in the digital age” where millions of Americans watch streaming videos on the internet instead of on “discarded VHS and DVD players,” they said. Roland alleges Chive’s website contains tracking software that collects and reveals metadata on his video-viewing history to Facebook without his consent, they said. But Roland doesn’t claim “any tangible harm or concrete injuries resulting from this innocuous conduct,” they said. He rather believes Chive’s alleged technical VPPA violation, “without more, makes a federal case,” they said.

But Roland is “mistaken,” said Chive’s motions. He doesn’t state a plausible VPPA claim because he failed to allege facts demonstrating he's a consumer under the statute, they said. To qualify as a consumer for VPPA purposes, Roland needs to show he’s a renter, purchaser or subscriber of Chive’s video-related services, but he falls “woefully short of this standard,” they said. He doesn’t allege he rented or bought anything from Chive, so his VPPA claim survives only if he qualifies as a subscriber under the statute, they said. But under “the most reasonable interpretation of VPPA’s text, he does not,” they said.

Roland’s “barebones” allegations are that he applied for a free, emailed Chive newsletter, but the complaint is “entirely silent” about the contents of the free newsletter “or whether it facilitated the viewing of video content on Thechive.com,” said Chive’s motions. Roland doesn’t allege the newsletter “provided him with any unique or premium access to Chive videos,” they said.

Roland also doesn’t allege the newsletter contained embedded Chive videos, nor does he allege the newsletter “afforded him benefits unavailable to Chive website users who did not subscribe to the newsletter,” they said. He alleges nothing indicating the newsletter constitutes video material or a video service from Chive, they said. Signing up for a free written newsletter, devoid of any connection to Chive’s video services, doesn’t make him a subscriber under the VPPA, they said: “His VPPA claim should accordingly be dismissed for failure to state a claim.”

The lawsuit's scope should be “drastically narrowed” to Roland in his “individual capacity alone,” said the Chive motions. When he signed up for Chive’s free newsletter, he also agreed to an online clickwrap agreement containing a valid and enforceable class action waiver clause, they said. Because Roland “freely and knowingly waived his procedural right to sue Chive in a class action,” the court should strike his class allegations under Rule 12(f), they said.

Established law makes clear that Roland “has no entitlement to bring a class action under Rule 23,” said Chive’s motions. The VPPA’s “generous” $2,500 liquidated damages provision “offers ample incentive for him to litigate this case individually to vindicate the technical, non-injurious statutory violation at issue here,” they said.