Plaintiffs' Privacy Claims Rely on Well-Rejected Liability Theory: NBCUniversal

The parties in a privacy class action vs. NBCUniversal and Peacock TV haven't engaged in any settlement discussions and anticipate a five-day trial, they said in a joint letter and proposed scheduling order Monday (docket 1:23-cv-09433). They were submitted under a Jan. 22 order and notice of initial conference from U.S. District Judge Vernon Broderick for Southern New York in Manhattan.

Defendants’ counsel submits there is “little reason to discuss any class settlement” until the court resolves its motion to dismiss and plaintiffs show that the action is amenable to class certification under Rule 23(b)(3), the letter said.

Plaintiffs Amma Afriyie and Roy Campbell’s October class action alleges software development kits in NBC apps allow app and website developers to “surreptitiously collect and transmit data to third parties,” including their video viewing history, in violation of the Video Privacy Protection Act (VPPA) (see 2310270060)

Plaintiffs’ claims under the VPPA and New York Video Consumer Privacy Act (NY VCPA) “rely on a theory of liability that has been rejected -- including by S.D.N.Y courts -- for more than eight years,” said the letter. The theory of liability at the center of the case turns on the ability of third-parties such as Adobe to use “non-public databases to link anonymous device identifiers disclosed by the NBC Apps to specific individuals,” it said. Because that process of identification doesn’t “readily permit an ordinary person to identify a specific individual,” most courts have found it does not implicate the VPPA, the letter said, citing Eichenberger v. ESPN.

Afriyie and Campbell’s claims fail because defendants’ data practices were publicly disclosed in public-facing terms of use and agreed to, counsel said. The plaintiffs haven’t identified any statements relating to the terms and policies that were misleading or omitted, so “they cannot maintain a Section 349 claim,” it said.

And plaintiffs’ unjust enrichment claim doesn’t identify independent basis for liability, and because that claim is “duplicative of” VPPA, VCPA and General Business Law claims, it is also subject to dismissal, the defendants' counsel said. If the court denies defendants’ motion to dismiss, NBC will likely raise additional defenses as the case proceeds, the letter said.

NBC and Peacock’s motion to dismiss was filed Jan. 19, and defendants filed a motion to stay discovery pending the resolution of the motion to dismiss. Future contemplated motions include plaintiffs’ motion for class certification and both parties’ motions for summary judgment, the letter said.