Vizio, Inc., Consumer Privacy Litigation

NOTICE OF MOTION AND MOTION to Dismiss Consolidated Complaint

C.D. Cal.September 19, 2016

DEFS.’ NOTICE OF MOTION AND MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AKIN GUMP STRAUSS HAUER & FELD LLP ANTHONY T. PIERCE (admitted pro hac vice) apierce@akingump.com 1333 New Hampshire Avenue NW, Suite 1500 Washington, DC 20036 Tel: 202-887-4000 Fax: 202-887-4288 HYONGSOON KIM (SBN 257019) kimh@akingump.com 4 Park Plaza, Suite 1900 Irvine, CA 92614 Tel: 949-885-4100 Fax: 949-885-4101 PATRICK EOGHAN MURRAY (SBN 293765) pmurray@akingump.com 1999 Avenue of the Stars Suite 600 Los Angeles, CA 90067 Tel: 310-229-1000 Fax: 310-229-1001 Attorneys for Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: Vizio, Inc., Consumer Privacy Litigation This document relates to: ALL ACTIONS MDL Case No. 8:16-ml-02693-JLS-KES DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 9(b), 12(b)(1) and 12(b)(6) Date: December 16, 2016 Time: 2:30 p.m. Place: Courtroom 10A Judge: Hon. Josephine L. Staton Case 8:16-ml-02693-JLS-KES Document 116 Filed 09/19/16 Page 1 of 4 Page ID #:666 1 DEFS.’ NOTICE OF MOTION AND MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 16, 2016 at 2:30 p.m., or as soon thereafter as counsel may be heard in Courtroom 10A of the Ronald Reagan Federal Building and United States Courthouse for the Central District of California, located at 411 W. Fourth St., Santa Ana, CA 92701, Defendants VIZIO Inc., VIZIO Holdings, Inc., VIZIO Inscape Technologies, LLC, and VIZIO Inscape Services, LLC (collectively “Defendants”) shall and hereby do move for an order dismissing Plaintiffs’ Consolidated Complaint, filed on August 15, 2016 (ECF No. 108, hereinafter the “Complaint”). This Motion is made on the grounds that Plaintiffs cannot establish subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure; state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and have failed to plead causes of action with the specificity required under Rule 9(b) of the Federal Rules of Civil Procedure as set forth below and in Defendants’ Memorandum of Points and Authorities. Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants respectfully request that the Court dismiss Plaintiffs’ Complaint for lack of subject matter jurisdiction. Plaintiffs lack standing to pursue each of their claims in the Complaint because they have not pled the requisite injury-in-fact required to support Article III standing for each claim. Defendants also move to dismiss each cause of action in the Complaint under Federal Rule of Civil Procedure 12(b)(6) on the grounds that they fail to state a claim upon which relief can be granted. Specifically: • Plaintiffs cannot state a claim for violation of the Video Privacy Protection Act (“VPPA”) (Claim 1) because Plaintiffs’ allegations establish as a matter of law that Defendants are not “video tape service providers;” that Plaintiffs are not “consumers” of such a “provider;” and that Defendants did not disclose Plaintiffs’ “personally identifiable information.” • Plaintiffs fail to state a claim for violation of state law VPPA equivalent statutes (Claims 4, 10, and 12) because Plaintiffs’ allegations establish as a matter of law Case 8:16-ml-02693-JLS-KES Document 116 Filed 09/19/16 Page 2 of 4 Page ID #:667 2 DEFS.’ NOTICE OF MOTION AND MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that Defendants are not subject to these statutes and that Defendants did not disclose information to third parties that is covered by these statutes. • Plaintiffs cannot state a claim for violation of the Wiretap Act and the California Invasion of Privacy Act (“CIPA”) because Plaintiffs’ allegations establish as a matter of law that Defendants do not “intercept” their communications “in transmission” and do not capture the “contents” of Plaintiffs’ communications. • Plaintiffs’ state consumer protection claims (Claims 5, 6, 7, 8, 9, 11, 13, and 14) fail to state a claim upon which relief can be granted because Plaintiffs do not allege facts showing “actual injury.” Additionally, to the extent Plaintiffs claims under California’s False Advertising (“FAL”) (Claim 7) and Washington’s Consumer Protection Act (“WCPA”) (Claim 14) rely on negligent omissions, which are not actionable under those statutes, they must be struck pursuant to Federal Rule of Civil Procedure 12(f). • Plaintiffs fail to state a claim for “privacy violation based on intrusion” (Claim 16) or for violation of Massachusetts’s statutory right to privacy (Claim 13) because Plaintiffs’ allegations establish that there was no intrusion that was highly offensive to a reasonable person and Plaintiffs do not have a reasonable expectation of privacy in the information allegedly collected and disclosed. • Plaintiffs fail to state a claim for unjust enrichment (Claim 15) because their Complaint establishes that they have adequate legal remedies for the complained- of conduct. Moreover, California does not recognize unjust enrichment as a separate cause of action. • Plaintiffs’ Complaint should also be dismissed in its entirety because it employs impermissible “group pleading” by referring to all Defendants collectively without adequately explaining which allegations are addressed to which defendants. Additionally, Plaintiffs fail to plead their fraud-based claims (Claims 5-9, 11, 14, and 19) with the particularity required by Rule 9(b) of the Federal Rules of Civil Case 8:16-ml-02693-JLS-KES Document 116 Filed 09/19/16 Page 3 of 4 Page ID #:668 3 DEFS.’ NOTICE OF MOTION AND MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Procedure. Plaintiffs also fail to allege facts showing actual reliance, as required under Rule 9(b), in Claims 5, 6, 7, 14, 18, and 19. This Motion is based on this Notice of Motion and Motion to Dismiss, the supporting Memorandum of Points and Authorities, all papers and pleadings in the Court’s file, on those matters of which the Court may take judicial notice, and on such oral argument as may be made at the hearing of this Motion. This Motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on September 12, 2016 at 11:00 a.m. and in subsequent written communications. Dated: September 19, 2016 AKIN GUMP STRAUSS HAUER & FELD LLP By: /s/ Hyongsoon Kim Anthony T. Pierce (admitted pro hac vice) apierce@akingump.com 1333 New Hampshire Avenue NW Suite 1500 Washington, DC 20036 Tel: 202-887-4000 Fax: 202-887-4288 Hyongsoon Kim (SBN 257019) kimh@akingump.com 4 Park Plaza, Suite 1900 Irvine, CA 92614 Tel: 949-885-4100 Fax: 949-885-4101 Patrick Eoghan Murray (SBN 293765) pmurray@akingump.com 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Tel: 310-229-1000 Fax: 310-229-1001 Attorneys for Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC Case 8:16-ml-02693-JLS-KES Document 116 Filed 09/19/16 Page 4 of 4 Page ID #:669 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AKIN GUMP STRAUSS HAUER & FELD LLP ANTHONY T. PIERCE (admitted pro hac vice) apierce@akingump.com 1333 New Hampshire Avenue NW, Suite 1500 Washington, DC 20036 Tel: 202-887-4000 Fax: 202-887-4288 HYONGSOON KIM (SBN 257019) kimh@akingump.com 4 Park Plaza, Suite 1900 Irvine, CA 92614 Tel: 949-885-4100 Fax: 949-885-4101 PATRICK EOGHAN MURRAY (SBN 293765) pmurray@akingump.com 1999 Avenue of the Stars Suite 600 Los Angeles, CA 90067 Tel: 310-229-1000 Fax: 310-229-1001 Attorneys for Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: Vizio, Inc., Consumer Privacy Litigation This document relates to: ALL ACTIONS MDL Case No. 8:16-ml-02693-JLS-KES MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 9(b), 12(b)(1) and 12(b)(6) Date: December 16, 2016 Time: 2:30 p.m. Place: Courtroom 10A Judge: Hon. Josephine L. Staton Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 1 of 51 Page ID #:670 i MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................... 1 II. FACTUAL ALLEGATIONS .................................................................................. 2 A. Allegations Regarding Plaintiffs’ Purchases. ................................................ 2 B. Allegations Regarding Smart Interactivity.................................................... 3 C. Allegations Regarding SmartCast. ................................................................ 4 D. Defendants’ Alleged Representations Regarding Smart Interactivity. .................................................................................................. 4 E. Plaintiffs’ Claims. .......................................................................................... 5 III. LEGAL STANDARD ............................................................................................. 6 IV. PLAINTIFFS LACK ARTICLE III STANDING ................................................... 6 A. Spokeo Confirms the Prior Rule that Statutory Violation Alone Is Insufficient for Article III Standing. ......................................................... 7 B. Plaintiffs’ Allegations of Mere Statutory Violations Cannot Establish Article III Standing. ....................................................................... 8 C. Plaintiffs Also Lack Standing to Pursue Claims Relying on Alleged Price Premium Injury. .................................................................... 10 D. Plaintiffs’ Intrusion on Privacy Claim Must Also Be Dismissed for Lack of Standing. ................................................................................... 12 E. Plaintiffs Lack Standing to Bring Any Claim Based on SmartCast. ................................................................................................... 12 V. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE VIDEO PRIVACY PROTECTION ACT ........................................................................... 13 A. Defendants Are Not “Video Tape Service Providers,” Because They Do Not Provide Any Video Materials or Services. ........................... 13 B. Plaintiffs Are Not “Consumers” Within the Meaning of the VPPA. .......................................................................................................... 16 C. Plaintiffs Fail to Allege that Defendants Disclosed Personally Identifiable Information. ............................................................................. 17 1. Anonymous Device Identifiers Are Not “Personally Identifiable Information”. ................................................................. 17 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 2 of 51 Page ID #:671 ii MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Anonymous Device Information Cannot Become PII Based on a Recipient’s Idiosyncratic Knowledge. ........................... 20 VI. PLAINTIFFS’ STATE LAW VPPA-ANALOG CLAIMS MUST BE DISMISSED FOR THE SAME REASONS AS THE VPPA CLAIM ................. 21 VII. PLAINTIFFS’ WIRETAP ACT CLAIM MUST BE DISMISSED ..................... 23 A. Plaintiffs Have Not Alleged that Communications Are Acquired in Transmission, as Required by the Wiretap Act....................... 24 B. The Information Allegedly Captured Is Not Actionable Under the Wiretap Act. .......................................................................................... 26 VIII. PLAINTIFFS’ CIPA CLAIM MUST BE DISMISSED FOR THE SAME REASONS AS WIRETAP ACT CLAIM ............................................................. 28 IX. PLAINTIFFS’ FRAUD-BASED CLAIMS ARE NOT PLED WITH PARTICULARITY REQUIRED BY FED. R. CIV. P. 9(B) ................................ 28 A. Plaintiffs Do Not Allege What Specific Representations the Named Plaintiffs Saw or When They Saw Any Representation. ................ 29 B. Plaintiffs Have Failed to Allege Actual Reliance with Particularity. ................................................................................................ 30 C. Plaintiffs Are Required to Plead, but Have Not Pled, Their Omission Claims with Particularity. ........................................................... 31 D. To the Extent that Plaintiffs’ California False Advertising Law Claim and Plaintiffs’ Claim for Negligent Misrepresentation Under California and Washington Law Are Based on an Omissions Theory, These Claims Should Be Dismissed. ........................... 32 X. PLAINTIFFS’ STATE CONSUMER PROTECTION CLAIMS MUST BE DISMISSED FOR FAILURE TO ALLEGE AN “ACTUAL INJURY” TO THE EXTENT THAT THE INJURY ALLEGED IS THE COLLECTION AND DISCLOSURE OF PERSONAL INFORMATION .................................... 33 XI. PLAINTIFFS’ CLAIMS FOR VIOLATION OF PRIVACY MUST BE DISMISSED .......................................................................................................... 34 A. Plaintiffs Fail to Allege a Highly Offensive Intrusion. ............................... 34 B. Plaintiffs Have No Reasonable Expectation of Privacy in the Information Collected. ................................................................................ 36 XII. PLAINTIFFS FIFTEENTH CLAIM FOR UNJUST ENRICHMENT SHOULD BE DISMISSED FOR FAILURE TO ALLEGE THE LACK OF AN ADEQUATE LEGAL REMEDY. .................................................................. 37 XIII. CONCLUSION ...................................................................................................... 39 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 3 of 51 Page ID #:672 iii MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) CASES In re Access Cardiosystems, Inc., 404 B.R. 593 (Bankr. D. Mass. 2009) ........................................................................ 30 In re Actimmune Mktng. Litig., 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009) ............................................................. 33 Aguiar v. Merisant Co., 2014 WL 6492220 (C.D. Cal. Mar. 24, 2014) ............................................................ 37 Andrew Duqum v. Scottrade, Inc., 2016 WL 3683001 (E.D. Mo. July 12, 2016) ............................................................... 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................. 2, 6 Attias v. CareFirst, Inc., __ F. Supp. 3d __, 2016 WL 4250232 (D.D.C. Sep. 8, 2016) ..................................... 8 Austin v. AARP & AARP Servs. Inc., 119 F.Supp.3d 1 (D.D.C. 2015) ............................................................................ 10, 11 Austin-Spearman v. AMC Network Entm’t LLC, 98 F. Supp. 3d 662 (S.D.N.Y. 2015) .......................................................................... 17 Baghdasarian v. Amazon.com, Inc., 2009 WL 4823368 (C.D. Cal. Dec. 9, 2009) .............................................................. 30 Bassam v. Bank of Am., 2015 WL 4127745 (C.D. Cal. Jul. 8, 2015) .................................................................. 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................. 2, 6 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975) .................................................................................................... 19 Blue Nile, Inc. v. Ice.com, Inc., 478 F. Supp. 2d 1240 (W.D. Wash. 2007) ................................................................. 38 Boorstein v. Men’s Journal LLC, 2012 WL 2152815 (C.D. Cal June 14, 2012) ............................................................. 10 BP W. Coast Prod. LLC v. SKR Inc., 989 F. Supp. 2d 1109 (W.D. Wash. 2013) ................................................................. 30 Bruton v. Gerber Prods. Co., 2014 WL 172111 (N.D. Cal. Jan. 15, 2014) ............................................................... 13 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 4 of 51 Page ID #:673 iv MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Buckland v. Threshold Enters., Ltd., 155 Cal. App. 4th 798 (2007) ............................................................................... 30, 33 Bunnell v. Motion Picture Ass’n of Am., 567 F. Supp. 2d 1148 (C.D. Cal. 2007) ...................................................................... 24 Burns v. Heyns, 2015 WL 4391983 (W.D. Mich. July 15, 2015) ......................................................... 27 Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) ............................................................... 12 In re Cascade Int’l Sec. Litig., 840 F. Supp. 1558 (S.D. Fla. 1993) ............................................................................ 30 Cefalu v. Globe Newspaper Co., 391 N.E.2d 935 (Mass. Ct. App. 1979) ...................................................................... 34 In re Cheerios Mktg, & Sales Practices Litig., 2012 WL 3952069 (D.N.J. Sept. 10, 2012) ................................................................ 11 Cherrone v. Florsheim Dev., 2013 WL 772526 (E.D. Cal. Feb. 28, 2013) .............................................................. 29 Cousineau v. Microsoft Corp., 992 F. Supp. 2d 1116 (W.D. Wash. 2012) ................................................................. 26 Denarii Sys., LLC v. Arab, 2013 WL 6162825 (S.D. Fla. Nov. 25, 2013) ............................................................ 37 Dilorenzo v. Costco Wholesale Co., 515 F. Supp. 2d 1187 (W.D. Wash. 2007) ..................................................... 29, 30, 33 DirecTV, LLC v. Wright, 2016 WL 3181170 (W.D.N.Y. June 3, 2016) ............................................................. 25 Doe v. Gonzaga, 24 P.3d 390 (Wash. 2001) .......................................................................................... 35 EcoDisc Tech. AG v. DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074 (C.D. Cal. 2010) ...................................................................... 28 Edmunson v. Procter & Gamble Co., 2011 WL 1897625 (S.D. Cal. May 17, 2011) ............................................................ 30 Eichenberger v. ESPN, Inc., 2015 WL 7252985 (W.D. Wash. May 7, 2015) ................................................... 18, 21 Ellis v. Cartoon Network, Inc., 2014 WL 5023535 (N.D. Ga. Oct. 8, 2014) ......................................................... 18, 21 Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) ............................................................................ 15, 17 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 5 of 51 Page ID #:674 v MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In re Facebook Internet Tracking Litig., 140 F. Supp. 3d 922 (N.D. Cal. 2015) .................................................................. 27, 28 In re Facebook Privacy Litig., 791 F. Supp. 2d 705 (N.D. Cal. 2011) ........................................................................ 33 Falco v. Nissan N. Am. Inc., 2016 WL 1327474 (C.D. Cal. Apr. 5, 2016) ............................................ 21, 29, 30, 33 Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986 (2011) ............................................................................... 36, 37 Fox v. Pollack, 181 Cal. App. 3d 954 (1986) ...................................................................................... 30 Gakuba v. Hollywood Video, Inc., 2015 WL 5737589 (D. Or. Sep. 30, 2015) ................................................................. 15 In re Gilead Scis. Sec. Litig., 536 F.3d 1049 (9th Cir. 2008) .................................................................................. 6, 9 Gomez v. Carmax Auto Superstores California, LLC, 2015 WL 350219 (C.D. Cal. Jan. 22, 2015) ............................................................... 31 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) .................................................................................................... 35 Goodman v. HTC Am., Inc., 2012 WL 2412070 (W.D. Wash. June 26, 2012) ....................................................... 29 In re Google Android Consumer Privacy Litig., 2013 WL 1283236 (N.D. Cal. Mar. 26, 2013) ........................................................... 35 In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125 (3d Cir. 2015) ................................................................................. 25, 26 Gragg v. Orange Cab Co., Inc., 942 F. Supp. 2d 1111 (W.D. Wash. 2013) ................................................................. 34 Granfield v. Nvidia Corp., 2012 WL 2847575 (N.D. Cal. July 11, 2012) ............................................................ 12 Groshek v. Time Warner Cable, Inc., 2016 WL 4203506 (E.D. Wis. Aug. 9, 2016) ............................................................... 8 Gubala v. Time Warner Cable, Inc., 2016 WL 3390415 (E.D. Wis. June 17, 2016) ......................................................... 8, 9 Hall v. Time Inc., 158 Cal. App. 4th 847 (2008) (UCL) ......................................................................... 33 Hancock v. Urban Outfitters, Inc., 32 F. Supp. 3d 26 (D.D.C. 2014) ................................................................................ 20 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 6 of 51 Page ID #:675 vi MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hargrove & Costanzo v. C.I.R., 240 F.R.D. 652 (E.D. Cal. 2006) ................................................................................ 30 Hart v. BHH, LLC, 2016 WL 2642228 (S.D.N.Y. May 5, 2016) .............................................................. 37 Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009) ................................................................................................ 35 Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1 (1994) ...................................................................................................... 36 Himes v. Brown & Co. Sec. Corp., 518 So.2d 937 (Fla. Ct. App. 1987) ...................................................................... 29, 33 Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) .................................................................................... 11 Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097 (N.D. Cal. 2011) ...................................................................... 25 In re Hulu Privacy Litig., 2014 WL 1724344 (N.D. Cal. Apr. 28, 2014) ...................................................... 15, 18 In re Hydroxycut Mktg. & Sales Practices Litig., 801 F. Supp. 2d 993 (S.D. Cal. 2011)................................................................... 29, 30 In re iPhone App. Litig., 844 F. Supp. 2d 1040 (N.D. Cal. 2012) ................................................................ 26, 35 In re iPhone Application Litig., 2011 WL 4403963 (N.D. Cal. Sept. 20, 2011) ........................................................... 33 Jamison v. Bank of America, __ F. Supp. 3d __, 2016 WL 3653456 (E.D. Cal. July 7, 2016) .................................. 7 Jodoin v. Baystate Health Sys., 2010 WL 1257985 (D. Mass. Mar. 29, 2010) ............................................................ 34 Kane v. Chobani, Inc., 2013 WL 5289253 (N.D. Cal. Sep. 19, 2013) ............................................................ 13 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) .............................................................................. 29, 31 Kelley v. CVS Pharmacy, Inc., 23 Mass. L. Rptr. 87, 2007 WL 2781163 (Mass. Super. Ct. 2007) ............................ 34 Khan v. Children’s Nat’l Health Sys., __ F. Supp. 3d __, 2016 WL 2946165 (D. Md. May 19, 2016) ............................... 8, 9 Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002) .......................................................................... 23, 24, 25 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 7 of 51 Page ID #:676 vii MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011) ................................................................................................ 30 Larsen v. Trader Joe’s Co., 2012 WL 5458396 (N.D. Cal. June 14, 2012) ............................................................ 12 In re Lehman Bros. Sec. & ERISA Litig., 2013 WL 5730020 (S.D.N.Y. Oct. 22, 2013) ............................................................. 30 Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963 (7th Cir. 2016) ...................................................................................... 11 Librizzi v. Ocwen Loan Serv. LLC, 120 F. Supp. 3d 1368 (S.D. Fla. 2015) ................................................................. 29, 33 Locklear v. Dow Jones & Co., Inc., 101 F. Supp. 3d 1312 (N.D. Ga. 2015) ................................................................. 18, 21 Low v. LinkedIn Corp., 900 F. Supp. 2d 1010 (N.D. Cal. 2012) ................................................................ 31, 35 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................................................... 6 In re Lupron Mktg. & Sales Practices Litig., 295 F. Supp. 2d 148 (D. Mass. 2003) ......................................................................... 38 Mark v. Seattle Times, 635 P.2d 1081 (Wash. 1981) ...................................................................................... 35 Marolda v. Symantec Corp., 672 F. Supp. 2d 992 (N.D. Cal. 2009) ........................................................................ 31 Mason v. Coca-Cola Co., 774 F. Supp. 2d 699 (D.N.J. 2011) ............................................................................. 11 Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581 (9th Cir. 2012) ...................................................................................... 21 McBeth v. Porges, 2016 WL 1092692 (S.D.N.Y. Mar. 21, 2016) ............................................................ 30 Medley v. Johnson & Johnson Consumer Cos., Inc., 2011 WL 159674 (D.N.J. Jan. 18, 2011) .................................................................... 11 Mendoza v. Microsoft Inc., 2014 WL 4540213 (W.D. Wash. Sep. 11, 2014) .......................................................... 9 Mirkin v. Wasserman, 5 Cal. 4th 1082 (1993) ................................................................................................ 30 Mollett v. Netflix, Inc., 795 F.3d 1062 (9th Cir. 2015) ............................................................................. passim Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 8 of 51 Page ID #:677 viii MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mulgrew v. City of Taunton, 574 N.E.2d 389 (Mass. 1991) ..................................................................................... 34 In re Nickelodeon Consumer Privacy Litig., 2014 WL 3012873 (D.N.J. July 2, 2014) ....................................................... 15, 19, 21 In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) ..................................................................... 16, 18, 19, 21 Norcia v. Samsung Telecommunications Am., LLC, 2015 WL 4967247 (N.D. Cal. Aug. 20, 2015) ........................................................... 32 O’Dell v. Conseco Senior Health Ins. Co., 2011 WL 13044240 (W.D. Wash. Feb. 10, 2011) ...................................................... 30 Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303 (M.D. Fla. 2011) ...................................................................... 35 Opperman v. Path, Inc., 87 F. Supp. 3d 1018 (N.D. Cal. 2014) ........................................................................ 28 Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512 (S.D.N.Y. 2003) ........................................................................ 33 Perez v. Monster Inc., 149 F. Supp. 3d 1176 (N.D. Cal. 2016) ...................................................................... 29 Perry v. CNN, No. 66 Cv 02926 (N.D. Ga Apr. 20, 2016) .......................................................... 18, 21 Prohias v. Pfizer, 485 F. Supp. 2d 1329 (S.D. Fla. 2007) ....................................................................... 10 Provo v. Rady Children’s Hosp., 2016 WL 4625556 (S.D. Cal. Sep. 6, 2016) ................................................................. 8 Regents of Univ. of Cal. v. Principal Fin. Grp., 412 F. Supp. 2d 1037 (N.D. Cal. 2006) ...................................................................... 32 Reid v. Johnson & Johnson, 780 F.3d 952 (9th Cir. 2015) ...................................................................................... 11 Remijas v. Neiman Marcus Group LLC, 794 F.3d 688 (7th Cir. 2015) ...................................................................................... 11 Robinson v. Disney Online, 152 F. Supp. 3d 176 (S.D.N.Y. 2015) ............................................................ 15, 18, 21 Rodriguez v. Sony Comput. Entm’t Am., LLC, 801 F.3d 1045 (9th Cir. 2015) .................................................................................... 15 Romero v. Dep’t Stores Nat’l Bank, __ F. Supp. 3d __, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016) ................................. 7 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 9 of 51 Page ID #:678 ix MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rosado v. eBay Inc., 53 F. Supp. 3d 1256 (N.D. Cal. 2014) ........................................................................ 30 Ross v. Kirner, 172 P.3d 701 (Wash. 2007) ........................................................................................ 32 Ruiz v. Gap, Inc., 540 F. Supp. 2d 1121 (N.D. Cal. 2008) ...................................................................... 33 Samiento v. World Yacht Inc., 883 N.E.2d 990 (N.Y. 2008) ....................................................................................... 38 Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912 (Mass. 1991) ..................................................................................... 35 Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986) .................................................................................... 29 Schwartz v. Independent Appraisals, LLC, 2011 WL 5593108 (D. Mass Nov. 17, 2011) ............................................................. 29 In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942 (S.D. Cal. 2014)......................................................................... 34 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .................................................................................................. 7 Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212 (C.D. Cal. 2012) ...................................................................... 32 Stasiak v. Kingswood Co-op, Inc., 2012 WL 527537 (M.D. Fla. Feb. 17, 2012) ........................................................ 35, 36 Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457 (5th Cir. 1994) ........................................................................................ 24 Sunbelt Rentals, Inc. v. Victor, 43 F. Supp. 3d 1026 (N.D. Cal. 2014) ........................................................................ 25 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ................................................................................................ 30 Tourgeman v. Collins Fin. Servs., Inc., __ F. Supp. 3d __, 2016 WL 3919633 (S.D. Cal. June 16, 2016) ................................ 7 U.S. v. Reed, 575 F.3d 900 (9th Cir. 2009) ...................................................................................... 26 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ...................................................................................................... 6 Van de Velde v. Coopers & Lybrand, 899 F. Supp. 731 (D. Mass. 1995) .............................................................................. 30 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 10 of 51 Page ID #:679 x MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097 (9th Cir.2003) ..................................................................................... 29 Willey v. J.P. Morgan Chase, N.A., 2009 WL 1938987 (S.D.N.Y. Jul. 7, 2009) ................................................................ 34 In re Yahoo Mail Litig., 308 F.R.D. 577 (N.D. Cal. 2015) .................................................................... 21, 36, 37 In re Yahoo Mail Litig., 7 F. Supp. 3d 1016 (N.D. Cal. 2014) .......................................................................... 36 Yamada v. Snipes, 786 F.3d 1182 (9th Cir. 2015) .................................................................................. 6, 9 Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) ....................................................................................... 19 Yunker v. Pandora Media, Inc., 2013 WL 1282980 (N.D. Cal. Mar. 26, 2013) ........................................................... 35 In re Zappos.com, Inc., 108 F. Supp. 3d 949 (D. Nev. 2015) ............................................................................. 9 In re Zynga Privacy Litig., 750 F.3d 1098 (9th Cir. 2014) ........................................................................ 26, 27, 37 STATUTES 18 U.S.C. § 2510(4) ............................................................................................................... 23, 26 § 2511(1)(a) ................................................................................................................ 24 § 2710 .......................................................................................................................... 13 § 2710(a)(1) ................................................................................................................ 16 § 2710(a)(3) .................................................................................................... 14, 16, 17 § 2710(a)(4) .................................................................................................... 13, 14, 16 § 2710(b)(1) ................................................................................................................ 21 Cal. Bus. & Prof. Code § 17500 ........................................................................................................................ 32 § 17535 ........................................................................................................................ 33 Cal. Civil Code § 1799.3 ............................................................................................................... 5, 8, 22 Cal. Penal Code § 631 ............................................................................................................................ 28 Mass. Gen. Laws Ann. ch. 93, § 106 ................................................................................................................ 22 ch. 93, § 106(2) ........................................................................................................... 23 ch. 214, § 1B ............................................................................................................... 34 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 11 of 51 Page ID #:680 xi MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N.Y. Gen. Bus. Law § 349 .............................................................................................................................. 5 § 350 .............................................................................................................................. 5 § 670 .................................................................................................................... 5, 9, 22 § 671 .................................................................................................................... 5, 9, 22 § 672 .................................................................................................................... 5, 9, 22 § 672(3) ....................................................................................................................... 23 § 673 .................................................................................................................... 5, 9, 22 § 674 .................................................................................................................... 5, 9, 22 § 675 .................................................................................................................... 5, 9, 22 RULES Fed. R. Civ. P. 9(b) ............................................................................................................ 28, 29, 30, 31 12(b)(1) ......................................................................................................................... 6 OTHER AUTHORITIES S. Rep. No. 99-541 (1986) ............................................................................................... 23 S. Rep. No. 100-599 (1988) ............................................................................................. 17 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 12 of 51 Page ID #:681 1 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION This case boils down to Plaintiffs’ allegation that Defendants VIZIO, Inc.; VIZIO Holdings, Inc.; VIZIO Inscape Technologies, LLC; and VIZIO Inscape Services, LLC (“Defendants”) transmit “viewing data” from VIZIO televisions, paired only with anonymous data such as device IDs, to analytics companies and other third parties. Plaintiffs struggle to shoehorn that allegation into inapposite statutes that long predate the Internet age. But the plain terms of the statutes Plaintiffs rely on do not cover Defendants or their alleged actions. Even accepting Plaintiffs’ assertions as true, Defendants’ alleged conduct is not proscribed by Congress, any state legislature, or the common law. This Court need not reach whether Plaintiffs have stated a claim, however, because the Complaint never gets out of the starting gate: Plaintiffs fail to allege any concrete injury-in-fact and thus lack standing to bring their claims. As the Supreme Court recently held, and as numerous cases have since confirmed, the Constitution requires a concrete injury even in the context of an alleged statutory violation. Further, the theory of injury supporting Plaintiffs’ non-statutory claims—that Defendants’ conduct led them to subjectively value their TVs less—has been rejected by courts nationwide. Plaintiffs cannot muster a single concrete injury—a dollar spent, an opportunity lost, an identity stolen—they allegedly suffered. That fundamental defect mandates dismissal. Even if Plaintiffs could overcome that critical threshold standing hurdle, they have plainly failed to state a single claim. Plaintiffs’ principal allegation is that Defendants violated the Video Privacy Protection Act (“VPPA”), a 30-year-old statute Congress enacted in response to a video-store clerk’s leaking a Supreme Court nominee’s videotape viewing habits to a prying reporter. That statute prevents 1) a “video tape service provider” from 2) knowingly disclosing information that “identifies a person” who is 3) a “renter[], purchaser[], or subscriber[]” of such services. Those plain terms foreclose Plaintiffs’ claim: Defendants do not “provide” video services to Plaintiffs; Plaintiffs do not rent, purchase, or subscribe to video services from Defendants; and the information allegedly disclosed does not “identif[y] a person.” Courts have sensibly Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 13 of 51 Page ID #:682 2 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rejected expansive theories like Plaintiffs’ because they would disrupt the way that advertising works in the Internet age, and potentially bring within the VPPA’s purview thousands of companies that make products ranging from cars to cable boxes and radios—a result that the VPPA’s plain language cannot support. Plaintiffs seek to amend the VPPA through this lawsuit, something to be accomplished only through clear and explicit direction from Congress—not creative pleading by Plaintiffs’ lawyers. The Complaint’s other claims fare no better. Although Plaintiffs allege a violation of the Wiretap Act, their own allegations prove that no “wiretapping” is going on. Plaintiffs fail to assert that any information is intercepted in transit, or that the “contents” of any message are ever intercepted—both necessary prerequisites to support a “wiretapping” claim. Likewise, Plaintiffs’ assorted tag-along unfair business practice claims and fraud-based claims rely on speculation and innuendo as opposed to specific allegations about what statements any Plaintiff saw or heard, much less relied on. This Court should decline to endorse Plaintiffs’ theories of expansive liability that no legislature has ever contemplated, never mind tolerated. Plaintiffs’ Complaint should be dismissed in its entirety. II. FACTUAL ALLEGATIONS1 A. Allegations Regarding Plaintiffs’ Purchases. VIZIO, an American “consumer electronics company” headquartered in Irvine, California, “designs, markets, and distributes for sale consumer electronic devices, 1 Plaintiffs’ Complaint lumps all four defendants together, and defines them as “VIZIO.” Consolidated Complaint, ECF No. 108 (hereinafter “CC”), at 1:5 (“Defendants VIZIO, Inc.; VIZIO Holdings, Inc.; VIZIO Inscape Technologies, LLC; and VIZIO Inscape Services, LLC (collectively referred to as “VIZIO”) in this [ ] Complaint”). This impermissible “group pleading” deprives Defendants of the notice required to respond to the allegations against them. See Ashcroft v. Iqbal, 556 U.S. 662, (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Bassam v. Bank of Am., 2015 WL 4127745, *7 (C.D. Cal. Jul. 8, 2015) (“A complaint fails to state a claim and must be dismissed if it does not ‘indicate which individual … defendants are responsible for which alleged wrongful act.’”) (citation omitted). For example, the Complaint does not allege which defendant made any specific representation, claiming merely that “VIZIO” made the purported misrepresentations. CC, ¶¶ 14, 64, 73. Plaintiffs similarly make the blanket assertion that “VIZIO” collects consumers’ data (see CC, ¶¶ 2, 13, 14, 15, 53). Given the impermissible grouping of Defendants in Plaintiffs’ pleading, Defendants respectfully request that this Court dismiss the entire Complaint with prejudice. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 14 of 51 Page ID #:683 3 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including Smart TVs, throughout the United States . . . .” CC, ¶¶ 24, 35. Plaintiffs do not describe defendants VIZIO Holdings, Inc., VIZIO Inscape Technologies, LLC, and VIZIO Inscape Services, LLC beyond identifying them as Delaware corporations that have a principle place of business in Irvine California. Id., ¶¶ 25-27. Plaintiffs allege that they purchased a variety of VIZIO Smart TV models in five different states: Plaintiff Rizzitello alleges that he purchased his Smart TV at a Wal-Mart location in Catskill, New York, while the remaining Plaintiffs allege only that their Smart TVs were purchased in their home states (California, Florida, Massachusetts, and Washington). Id., ¶¶ 16-21. Plaintiffs do not specify when they purchased their Smart TVs, nor do they provide any details about their individual purchasing decisions, including what representations if any Plaintiffs saw or relied upon in connection with their purchases.2 B. Allegations Regarding Smart Interactivity. Plaintiffs claim that one or more Defendants collect certain data from consumers’ Smart TVs without their consent and disclose this data to “advertisers and media content providers so they can deliver targeted advertisements.” Id., ¶¶ 2, 14. Defendants allegedly “capture real-time viewing behavior data from VIZIO Smart TVs” (id., ¶ 49) and use automatic content recognition technology called “Smart Interactivity” to “recognize attributes of the content displayed on VIZIO Smart TVs and match those attributes to a database of existing content, such as movies, TV shows, and games” (id., ¶ 50). Smart Interactivity and/or “Inscape data services” allegedly allows Defendants to “collect, aggregate, and store” the following types of data from “all media sources that connect via external input to the Smart TVs”: “data related to publicly available content displayed on VIZIO Smart TVs, such as the identity of a broadcast, cable, or satellite 2 Certain VIZIO Smart TVs are sold with binding arbitration agreements. Based on the Complaint, however, Defendants do not have sufficient information to determine whether any Plaintiff is subject to such an agreement. See CC, ¶¶ 16-21. Defendants intend to seek discovery on this issue. If Defendants determine any Plaintiffs are subject to VIZIO’s arbitration agreement, Defendants anticipate filing a motion to compel arbitration with respect to those individuals. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 15 of 51 Page ID #:684 4 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 television provider, and the television programs and commercials viewed (including time, date, channel, and whether they were viewed live or at a later time)”; IP addresses; zip codes; “online services visited by the consumer”; media access control (“MAC”) addresses; product model numbers; hardware and software versions; chipset IDs; and region and language settings. Id., ¶¶ 52-54. Plaintiffs allege that “[Defendants’] default policy is to turn on this data collection feature on all of its Smart TVs.” Id., ¶ 60. Plaintiffs allege that certain data, including viewing history, IP addresses, MAC addresses, and zip codes, is disclosed to third parties. Id., ¶ 8. Plaintiffs allege that the data disclosed to third parties in theory could be used to identify individuals. Id., ¶¶ 69- 80. But Plaintiffs do not allege any facts establishing that the data collected in fact identifies, or is actually used to identify, any individual person. C. Allegations Regarding SmartCast. Plaintiffs for the first time in the Consolidated Complaint include allegations related to SmartCast technology, although Plaintiffs do not allege that any named Plaintiff ever purchased or used this technology. SmartCast—“[Defendants’] latest delivery engagement software”—allegedly allows a user to watch programming on “a tablet remote that comes with [their] television” and/or on their smartphone, and to “‘cast,’ or display,” that programming from the tablet remote or smartphone to their display. Id., ¶¶ 47, 48. Inscape is alleged to collect certain information from SmartCast users, such as information about the video or audio playing on the display and certain commands “communicated to the SmartCast Products through the Smartcast App” (id., ¶ 55), but Plaintiffs do not cite any such alleged data collection in support of any of their claims. D. Defendants’ Alleged Representations Regarding Smart Interactivity. Plaintiffs allege that the packaging on Defendants’3 televisions “failed to inform Plaintiffs that if they took advantage of [their Smart TV’s] features or watched live 3 Because the allegations regarding representations made to consumers refer only to Defendants collectively, it is impossible to determine which Defendants are alleged to have made the claimed representations or omissions. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 16 of 51 Page ID #:685 5 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 broadcast programming on their Smart TVs, their viewing data would be collected by [Defendants] and disseminated to third parties.” Id., ¶ 22. Plaintiffs further claim that, had they “known the truth about [Defendants’] data collection practices and tracking software, they would not have purchased Smart TVs or would have paid less for them.” Id., ¶ 14. Plaintiffs admit that “consumers may turn off Smart Interactivity” (id., ¶ 7), but claim that “any reference to Smart Interactivity” is embedded in an “obscure settings menu” (id., ¶ 85). Plaintiffs acknowledge that pop-ups regarding Smart Interactivity and privacy settings appeared on Smart TVs (id., ¶¶ 11, 21, 94), and that Defendants’ privacy policy was available in the Smart TVs’ settings menu and on VIZIO’s website (id., ¶¶ 86, 88). Plaintiffs allege that Defendants’ privacy policies “have been updated over time[,]” and that in “all iterations in which VIZIO discusses its data collection practices, its statements are false or misleading and omit material information.” Id., ¶ 89. E. Plaintiffs’ Claims. Plaintiffs bring eighteen separate claims against every defendant for violation of: 1) the Video Privacy Protection Act (“VPPA”); 2) the Wiretap Act; 3) the California Invasion of Privacy Act (“CIPA”); 4) Cal. Civil Code § 1799.3; 5) California’s Consumer Legal Remedies Act (“CLRA”); 6) California’s Unfair Competition Law (“UCL”); 7) California’s False Advertising Law (“FAL”); 8) Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”); 9) N.Y. Gen. Bus. Law §§ 349, 350; 10) N.Y. Gen. Bus. Law §§ 670-675; 11) Massachusetts’s Unfair and Deceptive Trade Practices Statute; 12) Massachusetts’s Video Records Protection Statute; 13) Massachusetts’s statutory right to privacy; 14) Washington’s Consumer Protection Act (“WCPA”); 15) unjust enrichment/quasi-contract; 16) “privacy violation based on intrusion;” 17) intentional misrepresentation/fraud by omission (misnumbered as Claim 18); and 18) negligent misrepresentation/omission (misnumbered as Claim 19). See CC, ¶¶ 111-317. Plaintiffs assert Claims 1 through 7 on behalf of “[a]ll individuals in the United States who purchased a VIZIO Smart TV with Smart Interactivity capability for personal Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 17 of 51 Page ID #:686 6 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or household use, and not for resale, during the applicable statute of limitations period.” Id., ¶ 95. Additionally, Plaintiffs also assert Claims 3 through 7 and 15 through 19 on behalf of a California subclass; Claims 8 and 15 through 19 on behalf of a Florida subclass; Claims 9, 10, and 15 through 19 on behalf of a New York subclass; Claims 11 through 13 and 15 through 19 on behalf of a Massachusetts subclass; and Claims 14 through 19 on behalf of a Washington subclass. See id., ¶¶ 96-100. III. LEGAL STANDARD To survive a motion to dismiss, Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The “facial plausibility” standard requires a plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008); accord Iqbal, 556 U.S. at 678. IV. PLAINTIFFS LACK ARTICLE III STANDING Article III standing “is not merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit” but rather is “every bit as important in its circumscription of the judicial power of the United States as in its granting of that power.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 476 (1982). To satisfy this fundamental requirement, Plaintiffs must sufficiently plead an injury-in-fact fairly traceable to the defendant’s allegedly unlawful conduct (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)) “for each claim [they] seek[] to press and for each form of relief sought.” Yamada v. Snipes, 786 F.3d 1182, 1203 (9th Cir. 2015) (citation omitted). Because Plaintiffs have not alleged injury-in-fact sufficient to support Article III standing for any of their claims, these claims are subject to dismissal under Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 18 of 51 Page ID #:687 7 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Spokeo Confirms the Prior Rule that Statutory Violation Alone Is Insufficient for Article III Standing. “It is settled that Congress cannot erase Article III’s standing requirement by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016). Plaintiffs must show a “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical” to establish standing. Id. “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549 (emphasis added). In Spokeo, the Supreme Court reversed the Ninth Circuit’s determination that a plaintiff had Article III standing to bring a Fair Credit Reporting Act (“FCRA”) claim against defendant for publishing an online profile about him that contained inaccurate information (regarding his age, job status, and graduate degree), and remanded to the Ninth Circuit to consider whether plaintiff pled a particularized and concrete injury. Id. at 1545, 1550. The Court noted that violations of FCRA such as the publication of an inaccurate zip code or the failure to provide certain notices would likely not present an injury-in-fact supporting Article III standing, as it was “difficult to imagine how” these violations of FCRA, “without more, could work any concrete harm.” Id. at 1550. Following Spokeo, courts in the Ninth Circuit have repeatedly held that alleged statutory violations do not establish Article III standing if unaccompanied by allegations of concrete injury. See, e.g., Romero v. Dep’t Stores Nat’l Bank, __ F. Supp. 3d __, 2016 WL 4184099, *6 (S.D. Cal. Aug. 5, 2016) (no standing to bring Telephone Consumer Protection Act claim based on defendant’s use of automated dialer) (“[i]f the defendant’s actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing”); Jamison v. Bank of America, __ F. Supp. 3d __, 2016 WL 3653456, *4-5 (E.D. Cal. July 7, 2016) (no standing for Truth In Lending Act claim for failure to plead concrete harm where plaintiff alleged violation of statute); Tourgeman v. Collins Fin. Servs., Inc., __ F. Supp. 3d __, 2016 WL 3919633, *3 (S.D. Cal. June 16, 2016) (no standing for Fair Debt Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 19 of 51 Page ID #:688 8 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Collection Practices Act (“FDCPA”) claim where only pled injury was alleged violations of statute); Provo v. Rady Children’s Hosp., 2016 WL 4625556, *2 (S.D. Cal. Sep. 6, 2016) (no standing for FDCPA claim where plaintiffs did not plead “any harm or material risk of harm . . . suffered as a consequence” of statutory violation). Post-Spokeo courts have also found that mere disclosure of information in violation of a statute is not sufficient to establish concrete injury. See Khan v. Children’s Nat’l Health Sys., __ F. Supp. 3d __, 2016 WL 2946165, *7 (D. Md. May 19, 2016) (alleged “violations of state statutes” do not confer standing because loss of privacy due to alleged data breach not sufficiently concrete); Attias v. CareFirst, Inc., __ F. Supp. 3d __, 2016 WL 4250232, *5 (D.D.C. Sep. 8, 2016) (“Even if Plaintiffs’ rights under applicable consumer protection acts have been violated” by sharing of personal information in data breach “because they do not plausibly allege concrete harm, they have not demonstrated that they have standing to press their claims.”); Groshek v. Time Warner Cable, Inc., 2016 WL 4203506, *2-3 (E.D. Wis. Aug. 9, 2016) (violation of FDCPA resulting in alleged illegal access to plaintiff’s information insufficient to confer standing where no concrete harm alleged); Gubala v. Time Warner Cable, Inc., 2016 WL 3390415, *5 (E.D. Wis. June 17, 2016) (no Article III standing where plaintiff alleged injury due to cable provider’s retention of names, addresses and social security numbers in violation of Cable Communications Privacy Act (“CCPA”)). In short, it is not enough to merely allege a violation of a statute; to satisfy constitutional standing requirements, Plaintiffs must also allege a concrete and particularized injury-in-fact for each statutory violation. B. Plaintiffs’ Allegations of Mere Statutory Violations Cannot Establish Article III Standing. Seven of Plaintiffs’ claims—for violations of the VPPA, the federal Wiretap Act, and five state statutes—rely entirely on allegations that Plaintiffs have been injured merely due to the violation of a federal or state statute.4 Plaintiffs do not plead a single 4 See Claim 1 (VPPA) (CC, ¶ 118); Claim 2 (Wiretap Act) (id., ¶ 131); Claim 3 (California’s Invasion of Privacy Act (“CIPA”)) (id., at ¶ 139)); Claim 4 (Cal. Civ. Code Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 20 of 51 Page ID #:689 9 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 concrete injury in connection with these claims. Plaintiffs do not allege, for example, that due to the disclosure of the information allegedly collected by Defendants, any individual Plaintiff was contacted by third parties, such as advertisers, via phone, e-mail, or mail. Nor do they allege that they have been the victims of fraud, cyber-crime, or identity theft. Failure to plead such a concrete harm is fatal to Plaintiffs’ efforts to establish Article III standing. See Gubala, 2016 WL 3390415, *4 (only allegations such as contact by third-parties or crimes against plaintiffs due to disclosure of information might constitute injury-in-fact stemming from violations of CCPA). Plaintiffs’ failure to allege a concrete injury is not remedied by mere conclusory allegations that they suffered harm. The Court need not credit “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead, 536 F.3d at 1055; Khan, 2016 WL 2946165, *6 (“Khan argues that the data breach has caused a loss of privacy that constitutes an injury in fact. However, she has not identified any potential damages arising from such a loss and thus fails to allege a ‘concrete and particularized injury.’”). Vague and conclusory allegations of “invasion of privacy” alone do not give rise to standing. In re Zappos.com, Inc., 108 F. Supp. 3d 949, 962 n.5 (D. Nev. 2015) (requiring showing that loss of privacy amounts to concrete and particularized injury); see also Gubala, 2016 WL 3390415, *4 (“[a] statement that consumers highly value the privacy of their personally identifiable information . . . does not demonstrate that the plaintiff has suffered a concrete injury”); Andrew Duqum v. Scottrade, Inc., 2016 WL 3683001, *8 (E.D. Mo. July 12, 2016) (“Courts have held that loss of privacy and breach of confidentiality are too abstract to establish Article III standing.”). Having failed to plead any concrete actual injury, Plaintiffs lack standing to pursue any of their statutory claims. See Yamada, 786 F.3d at 1203 (plaintiffs must “demonstrate standing for each claim [they] seek[] to press”); Mendoza v. Microsoft Inc., § 1799.3) (CC, ¶ 148)); Claim 10 (N.Y. Gen. Bus. Law §§ 670-675) (CC, ¶ 249)); Claim 12 (Mass. Video Records Protection Statute) (id., ¶ 257); and Claim 13 (Mass. Statutory Right to Privacy) (id., ¶ 262). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 21 of 51 Page ID #:690 10 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2014 WL 4540213, *3 (W.D. Wash. Sep. 11, 2014) (dismissing VPPA claim on the grounds that plaintiffs “fail to allege sufficient facts to establish Article III standing” where plaintiffs pled “broad conclusory statements and formulaic recitations of the VPPA” and did not “allege a single fact to support their allegation that Microsoft allegedly retained and disclosed personally identifiable information”). C. Plaintiffs Also Lack Standing to Pursue Claims Relying on Alleged Price Premium Injury. Plaintiffs assert ten additional claims based on the theory that alleged privacy violations reduced their product’s value. See CC, ¶¶ 169, 192, 200, 201, 212, 225, 235, 239, 252, 278, 289, 307, 315 (California, Florida, Massachusetts, New York, and Washington consumer protection claims, intentional misrepresentations/fraud by omission, unjust enrichment, and negligent misrepresentation). But Plaintiffs do not explain how Defendants’ conduct reduced the value of their product. Plaintiffs simply express dissatisfaction with the product and claim that they would have paid less for it. See id. Such speculation does not establish standing as a matter of law. Prohias v. Pfizer, 485 F. Supp. 2d 1329, 1336 (S.D. Fla. 2007) (dismissing Florida and New York consumer protection claims because price premium theory was “too speculative to constitute an injury-in-fact under Article III”). Under Plaintiffs’ theory, a consumer could always manufacture injury merely by alleging that she subjectively valued a product less than what she paid for it. This would effectively erase the injury-in-fact requirement for consumer litigation. Boorstein v. Men’s Journal LLC, 2012 WL 2152815, *4 (C.D. Cal June 14, 2012) (“If injury exists based solely on the consumer’s expectation that the defendant will not violate a law, then injury exists in any situation where a business violates a law, regardless of whether there is actual harm to the consumer.”). A mere allegation of dissatisfaction with a defendant’s actions is insufficient to allege an actual harm. Austin v. AARP & AARP Servs. Inc., 119 F.Supp.3d 1, 9 (D.D.C. 2015) (rejecting consumer protection claim premised on disclosure of personal information and stating that “conclusory statements regarding a Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 22 of 51 Page ID #:691 11 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff's own beliefs and expectations are not sufficient to support an alleged ‘overpayment’ injury; rather, a plaintiff must allege facts that demonstrate that the breached term was objectively essential to the contract at issue, such that the violation effectively robbed the plaintiff of her payment because what she received was not what the parties agreed she had purchased”); In re Cheerios Mktg, & Sales Practices Litig., 2012 WL 3952069, *12 (D.N.J. Sept. 10, 2012) (no Article III standing under price premium theory because “‘[a]t most, plaintiffs simply claim that their expectations . . . were disappointed. Dissatisfaction with a product, however, is not a quantifiable loss . . . .’”) (quoting Mason v. Coca-Cola Co., 774 F. Supp. 2d 699, 704 (D.N.J. 2011)); Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 968 (7th Cir. 2016) (no plausible price premium theory of injury for Article III standing based on loss of data privacy; plaintiffs did not allege that products were “defective or dangerous” but only that they would not have purchased a product if they had known data would be disclosed); Remijas v. Neiman Marcus Group LLC, 794 F.3d 688, 695 (7th Cir. 2015) (same); Medley v. Johnson & Johnson Consumer Cos., Inc., 2011 WL 159674, *2 (D.N.J. Jan. 18, 2011) (no Article III standing for purchasers of shampoo because “Plaintiffs received the benefit of their bargain so long as there were no adverse health consequences, and the product worked as intended, meaning that the hair of Plaintiff's children was cleansed, and their eyes and skin were not irritated”).5 5 The facts here are unlike other cases in which plaintiffs allegedly relied on a misrepresentation concerning the product’s quality or ability to perform an intrinsic function. Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1105-06 (9th Cir. 2013) (defendant allegedly misrepresented “original” price of discounted clothes, which “provides important information about the product’s worth”); Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015) (plaintiffs alleged they would not have purchased health food had they known representations about its health effects were false). Plaintiffs here have not alleged that their Smart TVs are defective or do not perform their television-related functions as advertised; nor have they alleged that the product caused them some concrete injury that in turn reduced the value of their product. See Austin, 119 F.Supp.3d at 9 (D.D.C. 2015) (“The complaint does not (and apparently cannot) contend that website usage is the primary benefit of an AARP membership, nor that it is even an essential part of the bundle of rights that are conferred to AARP members, and this flaw is fatal to Austin–Spearman's economic injury theory of standing.”). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 23 of 51 Page ID #:692 12 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Plaintiffs’ Intrusion on Privacy Claim Must Also Be Dismissed for Lack of Standing. In their last remaining claim—for a “privacy violation based on intrusion” (see Claim 16)—Plaintiffs allege only that “[b]y invading Plaintiffs’ privacy, [Defendants] [have] obtained moneys which rightfully belong to Plaintiffs and the class.” CC, ¶ 298. For all the reasons stated above in Section IV.B., supra, such conclusory allegations of privacy violations without concrete injury are wholly insufficient to support Article III standing and this claim must be dismissed. E. Plaintiffs Lack Standing to Bring Any Claim Based on SmartCast. Plaintiffs vaguely allege that Defendants’ SmartCast technology collects certain information from users. But none of the Plaintiffs allege that they purchased or used the SmartCast technology at any time. Because a plaintiff may not assert claims for a product she did not purchase, Plaintiffs lack standing to pursue any claims that rely on allegations concerning SmartCast. See Granfield v. Nvidia Corp., 2012 WL 2847575, *6 (N.D. Cal. July 11, 2012) (“A plaintiff has standing to assert injury based on a defective product or false advertising only if the plaintiff experienced injury stemming from the purchase of that product. Accordingly, when a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing.”) (citations omitted); accord Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL 159380, *3 (N.D. Cal. Jan. 10, 2011) (dismissing claims for products which plaintiff did not allege he purchased); Larsen v. Trader Joe’s Co., 2012 WL 5458396, *4-5 (N.D. Cal. June 14, 2012). This is even more true because Plaintiffs fail to “allege facts sufficient to show that the products Plaintiffs did not purchase are ‘substantially similar’ to those that they did.” Kane v. Chobani, Inc., 2013 WL 5289253, *11 (N.D. Cal. Sep. 19, 2013). Here, Plaintiffs allege that SmartCast is an entirely different product than an Inscape-enabled Smart TV, with different features and functions. Plaintiffs allege that SmartCast is “VIZIO’s latest delivery engagement software” and “can be used on a tablet remote . . . Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 24 of 51 Page ID #:693 13 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to ‘cast,’ or display, content from the tablet remote to the television display or speakers” as well as a smartphone. CC, ¶¶ 47, 48 (emphasis added). Plaintiffs allege that SmartCast gathers different data than Inscape (see id., ¶¶ 55-57) and runs different software (see id., ¶¶ 45, 47, 50). Because the Complaint alleges neither that a single Plaintiff has purchased or used a SmartCast-enabled display nor that SmartCast is substantially similar to products purchased by Plaintiffs, any claims relying on SmartCast allegations must be dismissed and the SmartCast allegations must be struck. See Bruton v. Gerber Prods. Co., 2014 WL 172111, * 8 (N.D. Cal. Jan. 15, 2014) (dismissing claims based on products plaintiff did not purchase absent allegations showing how non- purchased products were similar to purchased products). V. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE VIDEO PRIVACY PROTECTION ACT The Video Privacy Protection Act (“VPPA”), which targets the “[w]rongful disclosure of video tape rental or sale records,” 18 U.S.C. § 2710, permits a private cause of action against “video tape service providers” for disclosing a consumer’s “personally identifiable information.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). In this first-of-its-kind challenge, Plaintiffs do not sue a provider of video services, but rather Defendants—whom Plaintiffs collectively call a “consumer electronics company” (CC, ¶ 35)—under the VPPA. But Defendants can be liable only if Plaintiffs demonstrate that: 1) Defendants are “video tape service providers”; 2) Plaintiffs are “consumers” of such a “provider”; and 3) Defendants disclosed their “personally identifiable information.” 18 U.S.C. § 2710. Plaintiffs’ sweeping allegations and far- fetched liability theory do not satisfy any of these requirements. A. Defendants Are Not “Video Tape Service Providers,” Because They Do Not Provide Any Video Materials or Services. “[I]n order to plead a plausible claim under [the VPPA], a plaintiff must allege that a defendant is a ‘video tape service provider.’” Mollett, 795 F.3d at 1066 (quoting 18 U.S.C. § 2710(a)(4)). Plaintiffs cannot do so. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 25 of 51 Page ID #:694 14 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “The VPPA was enacted in 1988 in response to the Washington City Paper’s publication of then-Supreme Court nominee Robert Bork’s video rental history.” Mollett, 795 F.3d at 1065. To solve the problem that prompted the VPPA’s enactment, Congress defined the term “video tape service provider” narrowly to capture video tape rental stores and similar enterprises, i.e., entities “engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials[.]” 18 U.S.C. § 2710(a)(4); see also id., § 2710(a)(3) (disclosure must relate to “specific video materials or services” obtained from video tape service provider). Under the statute’s plain terms, Defendants are only liable if Plaintiffs can show that they are engaged in the business of renting, selling, or delivering “prerecorded video cassette tapes or similar audio visual materials” to customers who obtained “specific video materials or services” from Defendants. In a strained attempt to fit Defendants within the VPPA, Plaintiffs allege only that Defendants are in the business of “deliver[ing]” video materials or services. CC, ¶ 112. But as Plaintiffs elsewhere concede, Defendants are not a “provider of specific video materials or services,” but a “consumer electronics company” that sells electronic devices to end users. Id., ¶ 35; see also id., ¶¶ 24-27 (VIZIO, Inc. “designs, markets, and distributes for sale consumer electronic devices, including Smart TVs, throughout the United States.”). Plaintiffs allege not that Defendants themselves deliver any videos, but rather that Defendants6 “facilitate[] the transmission of specific video titles to be made to consumers through its VIA and VIA Plus services[.]” Id., ¶ 112 (emphasis added); id., ¶ 45 (“VIZIO delivers video content through VIZIO Internet Apps, Internet Apps Plus, and 6 Plaintiffs conflate VIZIO and “Inscape” by identifying all of the Defendants collectively as a “consumer electronics company.” Id., ¶ 35. However, the remainder of the Complaint makes clear that “Inscape”’ is a data services software. Id., ¶ 49 (“Inscape data services. Inscape captures real-time viewing behavior data from VIZIO Smart TVs…”); Id., ¶ 52 (“Inscape program” uses Smart Interactivity software and “Inscape collects viewing data behavior from all media sources”). Data services companies are not Video Tape Service Providers (“VTSPs”) as they do not rent, sell, or deliver audio visual materials. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 26 of 51 Page ID #:695 15 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SmartCast. This software allows consumers to access programming available on Netflix, Hulu, YouTube, and Amazon Instant Video, among others.”) (emphasis added). Thus, Defendants are not akin to the video rental store that Congress targeted, but rather are like a building that leases space to several video rental stores (i.e., video content providers like Hulu and Netflix). Plaintiffs make clear that third-party service providers, not Defendants, actually sell, rent, and deliver “specific video materials or services” to users. See id., ¶ 45 (although VIZIO provides software platform, “Netflix, Hulu, YouTube and Amazon Instant Video and the like are entertainment companies that create, produce, or license video programming either for free, for rent, or as part of a paid subscription.”). Defendants are not aware of any court that ever found that entities like Defendants are “video tape service providers.” Every entity that courts have deemed to be “video tape service providers” either rented, sold, or delivered video content to users, either in a physical store or in an analogous online format. See e.g., Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1253 (11th Cir. 2015) (Cartoon Network mobile application delivered videos); Rodriguez v. Sony Comput. Entm’t Am., LLC, 801 F.3d 1045, 1048 (9th Cir. 2015) (PlayStation Network rented and sold movies and video games); Mollett, 795 F.3d at 1064 (Netflix sends subscribers videos by mail or allows them to stream videos online); Robinson v. Disney Online, 152 F. Supp. 3d 176, 184 (S.D.N.Y. 2015) (Disney Channel application delivers videos); Gakuba v. Hollywood Video, Inc., 2015 WL 5737589, *1 (D. Or. Sep. 30, 2015) (Hollywood Video rents movies to plaintiff). In contrast, a district court rejected the argument that Google was a “video tape service provider.” Even though Google operates a video service (i.e., YouTube), the district court dismissed the claims against Google where Plaintiffs failed to show that any “‘specific video materials or services’ have been requested” from Google. In re Nickelodeon Consumer Privacy Litig., 2014 WL 3012873, *8 (D.N.J. July 2, 2014). The Third Circuit affirmed Google’s dismissal, after plaintiffs on appeal abandoned any Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 27 of 51 Page ID #:696 16 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 argument that Google was a “video tape service provider” for purposes of the claims in suit. In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 281 n.119 (3d Cir. 2016). Accepting Plaintiffs’ expansive theory—that the VPPA applies to anyone who merely “facilitates the transmission” of video services by others—would extend liability under the Act far beyond the limits Congress imposed. Countless products and services arguably “facilitate the transmission” of video content: shipping services, Blu-ray players, smartphones, app stores, cable boxes, wireless routers, personal computers, video game consoles, and even cars. Nothing in the statute or legislative history indicates that Congress intended the meaning of “video tape service provider” to sweep in companies like FedEx or Toyota, which—like Defendants— arguably “facilitate” delivery of video content but are not “engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials,” and which do not deliver “specific video materials” to consumers. 18 U.S.C. § 2710(a)(3)-(4); see Nickelodeon, 827 F.3d at 290 (“The classic example [of a VPPA violation] will always be a video clerk leaking an individual customer’s video rental history. Every step away from that 1988 paradigm will make it harder for a plaintiff to make out a successful claim.”). Because Plaintiffs do not allege that Defendants delivered any “prerecorded video cassette tapes or similar audio visual content” to Plaintiffs or that Plaintiffs “requested or obtained specific video materials or services” from Defendants, Defendants are not “video tape service providers” and Plaintiffs’ VPPA claim fails for that reason alone. B. Plaintiffs Are Not “Consumers” Within the Meaning of the VPPA. The VPPA “defines the term ‘consumer’ as ‘any renter, purchaser, or subscriber of goods or services from a video tape service provider.’” Mollett, 795 F.3d at 1066 (quoting 18 U.S.C. § 2710(a)(1)). Plaintiffs do not allege that they “rent[]” or “purchase[]” any video services from Defendants, nor that they “subscribe[]” to any of Defendants’ services; instead, Plaintiffs allege that “[a]s users of VIZIO’s Smart TVs, Plaintiffs and members of the Class are consumers within the definition of . . . the VPPA.” CC, ¶ 113 (emphasis added). But the term “user” is not in the VPPA. And Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 28 of 51 Page ID #:697 17 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 several courts have specifically rejected the idea that a mere “user” of a service is a “subscriber.” See Ellis, 803 F.3d at 1256–57 (“user” of app not a subscriber given lack of “ongoing commitment or relationship between the user and the entity which owns and operates the app”); Austin-Spearman v. AMC Network Entm’t LLC, 98 F. Supp. 3d 662, 670 (S.D.N.Y. 2015) (rejecting argument that if “the provider has been able to access a user’s information, . . . [that] is thereby sufficient to render her a subscriber”; instead, “an individual must do more than simply take advantage of a provided service . . . in order to have acted as a ‘subscriber’ of the provider”). Of course, “Congress could have employed broader terms in defining ‘consumer’ when it enacted the VPPA (e.g., ‘user’ or ‘viewer’) or when it later amended the Act (e.g., ‘a visitor of a web site or mobile app’), but it did not.” Ellis, 803 F.3d at 1256–57 (emphases added). Equating “consumer” with “user” would “sweep[] so broadly as to be effectively limitless,” as essentially anyone who provides personal information to a service could be considered that service’s “user.” Austin-Spearman, 98 F. Supp. 3d at 670. Plaintiffs’ effort to “render[] the ‘consumer’ clause superfluous” should be rejected. Id. C. Plaintiffs Fail to Allege that Defendants Disclosed Personally Identifiable Information. 1. Anonymous Device Identifiers Are Not “Personally Identifiable Information”. The VPPA defines “personally identifiable information” (“PII”) as “information which identifies a person as having requested or obtained specific video materials or services[.]” 18 U.S.C. § 2710(a)(3) (emphasis added); see also S. Rep. No. 100-599 (1988), *12 (PII is information “that identifies a particular person as having engaged in a specific transaction with a video tape service provider”) (emphasis added). Plaintiffs, however, have failed to allege any facts showing that Defendants disclose information that “identifies a person.” Instead, the Complaint alleges only that Defendants disclosed “IP addresses, media access control (MAC) addresses, zip codes, Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 29 of 51 Page ID #:698 18 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 computer names, and product serial numbers.” CC, ¶¶ 114, 115.7 But as many courts have held, such “anonymous identification data alone is not PII.” In re Hulu Privacy Litig., 2014 WL 1724344, *11 (N.D. Cal. Apr. 28, 2014); see, e.g., Eichenberger v. ESPN, Inc., 2015 WL 7252985, *6 (W.D. Wash. May 7, 2015) (dismissing plaintiff’s VPPA claim because Roku device serial number is not PII); see also, e.g., Request for Judicial Notice (“RJN”), Ex. A (Perry v. CNN, No. 66 Cv 02926, *8-10 (N.D. Ga Apr. 20, 2016)) (anonymous string of numbers such as MAC address is not PII; personal information must directly link specific person with actual video choices); Robinson, 152 F. Supp. 3d at 184 (dismissing VPPA claim against Disney; an “anonymized Roku serial number . . . does not [identify a specific person]”); Locklear v. Dow Jones & Co., Inc., 101 F. Supp. 3d 1312, 1317 (N.D. Ga. 2015), abrogated on other grounds by Ellis, 803 F.3d at 1255; Ellis v. Cartoon Network, Inc., 2014 WL 5023535, *3 (N.D. Ga. Oct. 8, 2014) (dismissing VPPA claim because an “Android ID, without more, is not personally identifiable information”), aff’d on other grounds by Ellis, 803 F.3d 1251. As in these cases, Plaintiffs have alleged (at best) only that Defendants have disclosed device-identifying information. E.g., CC ¶ 54 (IP addresses are “unique identifiers assigned to personal digital devices”); id., ¶ 63 (Defendants collect “Non- Personal Information” “about their VIZIO products (such as MAC addresses, product model numbers, hardware and software versions, chipset IDs, and region and language settings)”); id., ¶ 69 (“[MAC] addresses, for example, are unique 12-digit identifiers that are assigned to individual mobile devices”) (emphasis added). But information that identifies a device is plainly not the same as information that “identifies a person.” See Nickelodeon, 827 F.3d at 295 (definition of PII “does not extend to the kind of static digital identifiers allegedly disclosed”); cf. Mollett, 795 F.3d 1066 (“The VPPA, however, does not prohibit all disclosures.”). “If an IP address were to count as 7 The Complaint inaccurately suggests that Defendants disclose data associated with the user profile for SmartCast consumers, but never alleges that any of the Plaintiffs are SmartCast consumers. Therefore any allegations concerning SmartCast are inapplicable to this case. See Section IV.E, supra. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 30 of 51 Page ID #:699 19 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personally identifiable information, either standing alone or coupled with similar data points, then the disclosure of an IP address to any Internet company with registered users might trigger liability under the Act.” Nickelodeon, 827 F.3d at 290.8 Plaintiffs vaguely allege that disclosure of these multiple data points “provides a ‘game plan’ to associate individuals with their viewing habits.” CC, ¶ 72. But the Third Circuit rejected that precise theory in the context of alleged disclosure of a much more comprehensive data set. The disclosure in Nickelodeon included not only virtually all the information at issue here (such as IP addresses and unique device identifiers), but additional person-specific information like “(1) the child’s username/alias; (2) the child’s gender; (3) the child’s birthdate[.]” Nickelodeon, 827 F.3d at 269. The Third Circuit concluded that the Act’s prohibition applies “only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior,” i.e., that “identifies a specific person.” Id. at 267. Thus, disclosure of anonymous device identifiers like IP addresses—“either standing alone or coupled with similar data points”—was not disclosure of PII as a matter of law. Id. at 290. In reaching its conclusion, the Nickelodeon court distinguished Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016), in which the First Circuit concluded that disclosure of GPS coordinates triggered application of the VPPA. See Nickelodeon, 827 F.3d at 289 (“the First Circuit focused on the fact that the defendant there allegedly disclosed not only what videos a person watched on his or her smartphone, but also the GPS coordinates of the phone’s location at the time the videos were watched”); see also Yershov, 820 F.3d at 486. Like Nickelodeon (and unlike Yershov), this case involves no GPS coordinates or similar information.9 This case involves only device-specific information (like IP 8 The VPPA’s legislative history supports the plain-text view. Although Congress recently amended the VPPA, it “left the law almost entirely unchanged” with respect to what constitutes PII—despite public testimony recommending that the definition be expanded to include things like IP addresses. Nickelodeon, 827 F.3d at 288; see Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 732-33 (1975) (Senate committee’s refusal to adopt change to statutory text evidence that judicial interpretation was correct). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 31 of 51 Page ID #:700 20 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 addresses, MAC addresses, and product serial numbers) that could not be tied to a particular user by an ordinary person as a matter of law. Nickelodeon, 827 F.3d at 290. Such device-specific disclosures are in fact far more limited and anonymous than the disclosures at issue in Nickelodeon, which included such additional person-specific disclosures as usernames, birthdates, and gender. Nevertheless, the Third Circuit held that such information, even in combination, was not PII as a matter of law: there, as here, Plaintiffs allegations are “simply too far afield from the circumstances that motivated the Act’s passage to trigger liability.” Id. 2. Anonymous Device Information Cannot Become PII Based on a Recipient’s Idiosyncratic Knowledge. Plaintiffs also appear to allege that, regardless of whether Defendants actually disclosed any PII, third parties could potentially combine Defendants’ non-PII data with other information that Defendants do not provide to identify particular persons. CC, ¶¶ 68-80. But Plaintiffs have not alleged that any third-party has actually identified any of the specific Plaintiffs’ actual names, ages, addresses, phone numbers, genders, or the like. Even if they had, this theory truly stretches the VPPA to the breaking point. The VPPA creates liability only when a video tape service provider “discloses” PII to a third-party. 18 U.S.C. § 2710(b)(1). Nothing in the Act suggests that a party that does not disclose PII could nonetheless be held liable simply because of something that happened later. Unsurprisingly, courts have roundly rejected the suggestion that disclosure of anonymous data could lead to VPPA liability simply because a third-party data expert might piece together a person’s identity: “The allegation that Google will assemble otherwise anonymous pieces of data to unmask the identity of individual children is, at least with respect to the kind of identifiers at issue here, simply too hypothetical to 9 Plaintiffs vaguely allege that Defendants reveal “geolocation data” (CC, ¶¶ 8, 72, 79), but elsewhere make clear that Plaintiffs only disclose “IP addresses, media access control (MAC) addresses, zip codes, computer names, and product serial numbers.” (id., ¶114). Zip codes, which can cover areas with populations of 10,000 or more, are not PII. Hancock v. Urban Outfitters, Inc., 32 F. Supp. 3d 26, 32 (D.D.C. 2014) (“[A] ZIP code is not a ‘unique location identifier’ since tens of thousands of people and organizations have the same ZIP code.”), vacated and remanded on other grounds, 2016 WL 3996710 (D.C. Cir. July 26, 2016). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 32 of 51 Page ID #:701 21 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support liability under the [VPPA].” Nickelodeon, 827 F.3d at 290; RJN, Ex. A (Perry v. CNN, No. 66 Cv 02926, *8-10 (N.D. Ga Apr. 20, 2016)) (alleged disclosure of MAC address to analytics company that used addresses to identify users did not violate VPPA; VPPA’s emphasis “falls ‘on disclosure, not comprehension by the receiving person’”); Robinson, 152 F. Supp. 3d at 182 (transmission of device identifier did not violate VPPA because disclosed information “must itself do the identifying that is relevant for purposes of the VPPA,” “not information disclosed by a provider, plus other pieces of information collected elsewhere by non-defendant third parties”) (emphasis added); Ellis, 2014 WL 5023535, *3 (sending Android IDs to data analytics company specializing in tracking individual user behaviors was not violation of VPPA; data analytics company had to collect information from other sources before it could identify specific individuals); Locklear, 101 F. Supp. 3d at 1317 (transmitting Roku serial number to analytics company that identified specific individuals was not a violation of VPPA because analytics company had to take further steps to match Roku number with specific individual); Eichenberger, 2015 WL 7252985, *4 (ESPN did not violate VPPA by sending Roku serial number to data broker who identified specific individual using existing data already in data broker’s system). As these cases make clear, the VPPA is concerned only with disclosures of data that independently qualify as PII. Nickelodeon, 827 F.3d at 290. “If nearly any piece of information can, with enough effort on behalf of the recipient, be combined with other information so as to identify a person, then the scope of PII would be limitless.” Robinson, 152 F. Supp. 3d at 181. This Court should reject this radical expansion of the definition of PII. VI. PLAINTIFFS’ STATE LAW VPPA-ANALOG CLAIMS MUST BE DISMISSED FOR THE SAME REASONS AS THE VPPA CLAIM10 10 For purpose of this motion only, Defendants assume that the law of the state in which the Plaintiff allegedly resides in fact applies to Plaintiff’s claims. Defendants reserve the right to challenge Plaintiffs’ choice-of-law selection at the appropriate stage. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 596 (9th Cir. 2012) (UCL, FAL, and CLRA claim could not be brought on behalf of nationwide class); In re Yahoo Mail Litig., 308 Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 33 of 51 Page ID #:702 22 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs bring three claims pursuant to state statutory analogs to the VPPA: Claim 4 (under California Civil Code Section 1799.3); Claim 10 (under N.Y. Gen. Bus. Law, §§ 670-675); and Claim 12 (under Mass. Gen. Laws Ann. ch. 93, § 106). Each statute contains language similar to the VPPA. Cal. Civ. Code § 1799.3 (“No person providing video recording sales or rental services shall disclose any personal information or the contents of any record, including sales or rental information” without consent); N.Y. Gen. Bus. Law, § 673 (prohibiting video tape service providers and sellers from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer”); and Mass. Gen. Laws Ann. ch. 93, § 106 (prohibiting “persons engaged in the business of leasing or renting videos or any employee thereof [to] maintain records that would indicate the title or category of any video leased or rented by a borrower other than the records necessary to ensure a completed transaction of such video”). Each claim fails for the same reason that the VPPA claim fails. First, Plaintiffs have not alleged that Defendants sell or rent video content, as required under the various statutes. California Civil Code Section 1799.3 applies only to persons who provide “video recording sales or rental services,” a definition that is narrower than VTSP under the VPPA. N.Y. Gen. Bus. Law also is narrower than the VPPA, applying only to “retail establishments” defined as “any person engaged in the business of rental of prerecorded video cassette tapes or similar audio visual materials” and “‘any person engaged in the business of selling prerecorded video cassette tapes or similar audio visual materials.”). Id. at §§ 671, 672. The Massachusetts Video Records Protection Statute applies only to “persons engaged in the business of leasing or renting videos.” Mass. Gen. Laws Ann. ch. 93, § 106. Plaintiffs do not allege that Defendants are in the business of renting or selling videos or content. See CC, ¶¶ 143, 245. These claims also fail because Plaintiffs have not alleged that Defendants disclose consumers’ PII to third parties. The Ninth Circuit has held that section 1799.3 should be F.R.D. 577, 603 (N.D. Cal. 2015) (CIPA claim could not be brought on behalf of nationwide class). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 34 of 51 Page ID #:703 23 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interpreted similarly to the VPPA. See, e.g., Mollett, 795 F.3d at 1066 (liability for disclosure under VPPA almost identical to liability under Section 1799.3). The New York statute defines PII as “any information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider or video tape seller.” N.Y. Gen. Bus. Law, § 672(3). Though New York courts have not analyzed this language, courts interpreting the almost identical language in the VPPA have found that anonymous identifiers do not qualify as PII. See Section V, supra. Finally, the Massachusetts statute prohibits the disclosure of “records that would indicate the name of the borrower or the title or category of any video leased or rented by a borrower.” Mass. Gen. Laws Ann. ch. 93, § 106(2). Plaintiffs have not alleged that Defendants ever disclosed the name of the borrower or the video content leased or rented by a specific borrower, as discussed in detail above. VII. PLAINTIFFS’ WIRETAP ACT CLAIM MUST BE DISMISSED Plaintiffs’ claim for relief under the Wiretap Act, 18 U.S.C. § 2510 et seq. similarly attempts to shoehorn ill-fitting allegations into a statute that has no applicability and was not intended to regulate the conduct at issue. In enacting the Wiretap Act, Congress was concerned with government surveillance of transmissions – a far cry from the conduct alleged here. S. Rep. No. 99-541, p. 5 (ECPA created “a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.”). Plaintiffs’ claim under this statute must be dismissed for two reasons. First, Plaintiffs have not—and cannot—adequately allege facts supporting that Defendants intentionally “intercepted” an electronic communication—a fundamental requirement of the Wiretap Act. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 876 (9th Cir. 2002). Second, none of the information allegedly intercepted constitutes “contents” of the communications. See 18 U.S.C. § 2510(4) (defining “intercept” as “the aural or other acquisition of the contents of any . . . communication”). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 35 of 51 Page ID #:704 24 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Plaintiffs Have Not Alleged that Communications Are Acquired in Transmission, as Required by the Wiretap Act. The Wiretap Act governs a person who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.]” 18 U.S.C. § 2511(1)(a). “Intercept” means to acquire a communication during its transmission. Konop, 302 F.3d at 878-79; Bunnell v. Motion Picture Ass’n of Am., 567 F. Supp. 2d 1148, 1153 (C.D. Cal. 2007) (“[T]he Wiretap Act applies only to ‘acquisition contemporaneous with transmission.’”) (citation omitted). This “is consistent with the ordinary meaning of ‘intercept,’ which is ‘to stop, seize, or interrupt in progress or course before arrival.’” Konop, 302 F.3d at 878-79 (emphasis added). Where content is in temporary storage or has arrived at its final destination, it is no longer in transmission. Id. at 876 (finding no interception when defendant accessed website without authorization because written content on a website is no longer in transmission); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 461-62 (5th Cir. 1994) (unread, private email messages hosted on electronic bulletin board system were not intercepted because they were no longer in transmission). The Complaint makes clear that any alleged acquisition of data was not during “transmission.” Plaintiffs allege that Defendants gather data through Inscape, which captures the “content displayed on VIZIO Smart TVs” and that “Smart Interactivity intelligently recognizes the content on the screen” of the Smart TVs. CC, ¶¶ 50, 52, 88 (emphasis added). Similarly, Plaintiffs allege that the “viewing data points” are taken “from over 8 million VIZIO Smart TVs.” Id., ¶ 39. Plaintiffs thus allege that Inscape takes only communications already being displayed on their Smart TVs, in other words, communications that have been received. Plaintiffs’ allegations regarding the collection of IP addresses and other record information also rely on Inscape’s technology (see CC, ¶ 54: “Inscape also collects consumers’ IP addresses . . . .”). Gathering data after Plaintiffs have already received the communication and are viewing it on their Smart TVs does not qualify as an interception under the Wiretap Act. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 36 of 51 Page ID #:705 25 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DirecTV, LLC v. Wright, 2016 WL 3181170 (W.D.N.Y. June 3, 2016) is particularly instructive. In DirecTV, defendants allegedly rebroadcast their DirecTV satellite programming using secondary receivers that mirrored DirecTV programming to other televisions. The court focused on “whether DirecTV has alleged that the [defendants] actually intercepted a DirecTV satellite signal within the meaning of § 2511.” Id. at *5. The court did not find interception, noting that “DirecTV does not appear to be alleging that the Wrights ‘seize[d] satellite signals ‘before arrival’ to DirecTV receivers” as required by Konop. Id. at *5-6. The court noted that there was no unauthorized seizure when the content was mirrored from the televisions that were authorized to and had already received the content. As in DirecTV, the Complaint alleges that the relevant data has arrived at the television before such data is allegedly “intercepted.” See CC, ¶¶ 39, 50, 52, 88, 62 (“Inscape collects, aggregates and stores data regarding most content displayed on Vizio television screens . . . . .” (emphasis added)). Given these clear factual allegations, the Court can and should disregard Plaintiffs’ conclusory allegations that “interception [by Defendants of viewing data] was acquired during transmission” (CC, ¶ 128). See In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 142 (3d Cir. 2015) (dismissing Wiretap Act claim; court “need not give legal effect to ‘conclusory allegations’ that are contradicted by the pleader’s actual description of what happened”); Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1106 (N.D. Cal. 2011) (dismissing Wiretap Act claim where allegations regarding how Microsoft “intercepted” plaintiff’s communications “are both conclusory and devoid of factual support”); Sunbelt Rentals, Inc. v. Victor, 43 F. Supp. 3d 1026, 1030-31 (N.D. Cal. 2014) (plaintiff “vaguely allege[d]” that defendant intercepted his text messages but “provide[d] no facts to support this otherwise conclusory assertion” and “[i]f anything, the pleadings suggested that [defendant] read [plaintiff’s] text messages after they were sent and received . . . which is insufficient to demonstrate intentional interception”). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 37 of 51 Page ID #:706 26 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The Information Allegedly Captured Is Not Actionable Under the Wiretap Act. The Wiretap Act only prohibits the acquisition of “the contents of any wire, electronic, or oral communication . . . .” 18 U.S.C. § 2510(4) (emphasis added). But the information allegedly “captured,” such as “viewing histories and preferences, IP addresses, MAC addresses, zip codes, product model numbers, hardware and software versions, chipset IDs, and region and language settings” (CC, ¶ 129), is not the “content” of a communication for purposes of the Wiretap Act. The Ninth Circuit limits “content” to “the intended message conveyed by the communication”; it “does not include record information regarding the characteristics of the message that is generated in the course of the communication.” See In re Zynga Privacy Litig., 750 F.3d 1098, 1106 (9th Cir. 2014). None of the following is “content” under the Wiretap Act: a telephone call’s origination, length, and time, U.S. v. Reed, 575 F.3d 900, 917 (9th Cir. 2009); the geographic location of a mobile device, Cousineau v. Microsoft Corp., 992 F. Supp. 2d 1116, 1127 (W.D. Wash. 2012); and routing or signaling information when performing a routing function (like telephone numbers, URL addresses, In re Google Inc. Cookie Placement, 806 F.3d at 136-38; In re iPhone App. Litig., 844 F. Supp. 2d 1040, 1062 (N.D. Cal. 2012) (“[P]ersonally identifiable information that is automatically generated by the communication but that does not comprise the substance, purport, or meaning of that communication is not covered by the Wiretap Act”). Plaintiffs allege no facts establishing that the data allegedly “intercepted” constitutes the substance of any communication. CC, ¶ 129. Plainly, “IP addresses, MAC addresses, zip codes, product model numbers, hardware and software versions, chipset IDs, and region and language settings” do not constitute “contents” of communications. Like routing and geographic information, see Reed, 575 F.3d at 917, such record information is automatically generated in connection with Plaintiffs’ usage of their Smart TVs, and does not constitute the “substance, purport, or meaning” of the Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 38 of 51 Page ID #:707 27 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 communication itself. See e.g. CC, ¶ 69 (“MAC addresses are automatically broadcast when devices search for networks or communicate with other devices.”). Similarly, “viewing histories” do not constitute “content” under the Wiretap Act but are instead mere “record” information excluded from the Act’s coverage. See In re Zynga Privacy Litig., 750 F.3d at 1102 (reference header sent when Facebook user clicked on link that included “the user’s Facebook ID and the address of the Facebook webpage the user was viewing when the user clicked the link” did not constitute “contents”); In re Facebook Internet Tracking Litig., 140 F. Supp. 3d 922, 935-36 (N.D. Cal. 2015) (alleged interception of users’ browsing histories and “the identity of the webpages that the users visited” failed to state claim under Wiretap Act); Burns v. Heyns, 2015 WL 4391983, 83, 18 (W.D. Mich. July 15, 2015) (information generated from prison computer about “the time, order and duration the computer spent on each web page as well as which files were accessed and/or downloaded,” was not content because data “merely provides ‘record information’ about a prisoner’s usage of the [computer]”). According to the Complaint, Plaintiffs’ “viewing histories” – alleged to include “online services a consumer visited” and the identity of “movies or television consumers watch” (CC, ¶¶ 8, 13) – provide only a list of what Plaintiffs accessed on their Smart TV, not the “the intended message conveyed” by the actual movies, shows, or services themselves. Indeed, Plaintiffs allege that the “viewing data points” allegedly collected are “attributes of the content displayed on VIZIO Smart TVs” and that Smart Interactivity “match[es] those attributes to a database of existing content . . . .” Id., ¶ 50 (emphasis added). According to Plaintiffs’ own allegations then, the viewing data points themselves are simply record information. Any actions taken by Defendants after collecting those data points, such as allegedly using Smart Interactivity to “match those attributes to a database of existing contents” are immaterial to the Wiretap Act analysis, which concerns the act of interception. Here, as alleged by Plaintiff, interception is the collection of data points “on the screen” of their Smart TVs. CC, ¶ 88. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 39 of 51 Page ID #:708 28 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VIII. PLAINTIFFS’ CIPA CLAIM MUST BE DISMISSED FOR THE SAME REASONS AS WIRETAP ACT CLAIM “The analysis for a violation of CIPA is the same as that under the federal Wiretap Act.” NovelPoster v. Javitch Canfield Group, 140 F. Supp. 3d 938, 954 (N.D. Cal. 2014) (granting judgment on the pleadings on CIPA claim for the same reasons that supported the dismissal of its Wiretap Act claim). Like the Wiretap Act, CIPA requires interception of communications “in transit” and does not apply when a party has not obtained the contents of a communication. Cal. Penal Code § 631; see Opperman v. Path, Inc., 87 F. Supp. 3d 1018, 1064 (N.D. Cal. 2014) (dismissing CIPA claim that “suffer[ed] from the same deficiency” as plaintiffs’ Wiretap Act claim, which did not allege an interception contemporaneously with a communication’s transmission); In re Facebook Internet Tracking Litig., 140 F. Supp. 3d 922 (N.D. Cal. 2015) (dismissing CIPA claim for failure to allege that defendant obtained contents of a communication). Because Plaintiffs have not alleged that Defendants intercept communications while in transmission, or that Defendants collect the content of communications, Plaintiffs’ CIPA claim must be dismissed. IX. PLAINTIFFS’ FRAUD-BASED CLAIMS ARE NOT PLED WITH PARTICULARITY REQUIRED BY FED. R. CIV. P. 9(B) “In alleging fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake.” Fed. R. Civ. P. 9(b). Claims 5 through 9, 11, 14, and 19 are all fraud claims, or are grounded, at least in part, in fraud: Plaintiffs claim that Defendants failed to adequately disclose the purported collection and disclosure of consumer data to consumers, and in so doing, induced consumers to purchase VIZIO Smart TVs. CC ¶¶ 150-175; 184-194; 195-215; 223-228; 230-241; 250- 253; 263-274; 284-287; 301-317. Rule 9(b)’s heightened pleading requirements thus apply to Plaintiffs’ fraud claims (Claims 18 and 19), Plaintiffs’ FAL Claim (Claim 7),11 11 EcoDisc Tech. AG v. DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 1085 (C.D. Cal. 2010) (“Plaintiff’s false advertising claims are grounded in fraud and that Rule 9(b) applies to the pleading of this claim.”). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 40 of 51 Page ID #:709 29 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Plaintiffs’ state consumer protection claims to the extent that they are based on fraud or deception (Claims 5, 6, 8, 9, 11, and 14).12 To satisfy Rule 9(b), Plaintiffs’ allegations must include “‘the who, what, when, where, and how’ of the alleged misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (citation omitted); accord Schreiber Distrib. Co. v. Serv– Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Plaintiffs must also set forth what is false or misleading about a statement. Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003). Plaintiffs have failed to meet the requirements of Rule 9(b) in pleading these claims; they do not describe what statements Defendants made that Plaintiffs actually saw, when they saw it, or any details regarding their reliance on such statements. A. Plaintiffs Do Not Allege What Specific Representations the Named Plaintiffs Saw or When They Saw Any Representation. While Plaintiffs identify certain statements on VIZIO’s website and in VIZIO’s privacy policy that they contend are misleading (see CC, ¶¶ 87-90, 92-94), no named Plaintiff is alleged to have actually seen any of these statements. Plaintiffs only generally allege that, “[w]hen shopping for their Smart TVs, Plaintiffs looked at the description of the televisions provided on the boxes in which their VIZIO Smart TVs were packaged.” CC, ¶ 22. This single allegation collectively refers to “Plaintiffs” without naming any single plaintiff, and does not specify the packaging material that any individual Plaintiff actually saw. Cherrone v. Florsheim Dev., 2013 WL 772526, *2 (E.D. Cal. Feb. 28, 2013) (dismissing claim under Rule 9(b) because plaintiffs “refer[red] to a broad array of advertising material” but failed to “explain how each of the plaintiffs encountered the alleged misrepresentation”); In re Hydroxycut Mktg. & Sales Practices Litig., 801 F. 12 Perez v. Monster Inc., 149 F. Supp. 3d 1176, 1181 (N.D. Cal. 2016) (UCL, FAL, and CLRA claims); Librizzi v. Ocwen Loan Serv. LLC, 120 F. Supp. 3d 1368, 1381 (S.D. Fla. 2015) (FDUTPA claims); Schwartz v. Independent Appraisals, LLC, 2011 WL 5593108, *7 (D. Mass Nov. 17, 2011) (“Where a [Massachusetts] Chapter 93A action sounds in fraud, a plaintiff must plead such fraud with particularity.”); Goodman v. HTC Am., Inc., 2012 WL 2412070, *16 (W.D. Wash. June 26, 2012) (fraud-based WCPA claim). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 41 of 51 Page ID #:710 30 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supp. 2d 993, 1006 (S.D. Cal. 2011) (rejecting complaint alleging that “Plaintiff was exposed to and read Defendants’ advertising claims, including . . . labeling,” because the complaint did not “specify which of the advertising claims each Plaintiff saw or read.”). Nor does the Complaint allege when the named Plaintiffs encountered any allegedly misleading statement. Indeed, Plaintiffs do not even provide a time period during which alleged misrepresentations were made or advertisements, product packages, or statements on VIZIO’s website were distributed and available. Hargrove & Costanzo v. C.I.R., 240 F.R.D. 652, 658 (E.D. Cal. 2006) (Rule 9(b) not satisfied when complaint merely stated that the fraudulent conduct “took place from 1995 through 2000”); Hydroxycut, 801 F. Supp. 2d at 1006-07 (dismissing claim under Rule 9(b) where “[n]o facts are alleged as to the timing of the purchase in relation to the Plaintiffs exposure to the advertising claims”); Edmunson v. Procter & Gamble Co., 2011 WL 1897625, *5 (S.D. Cal. May 17, 2011) (accord). B. Plaintiffs Have Failed to Allege Actual Reliance with Particularity. The following claims require allegations of facts establishing actual reliance: Claim 5 (CLRA), Claim 6 (UCL), Claim 7 (FAL), and Claim 14 (WCPA),13 Claim 18 (fraud)14, and Claim 19 (negligent misrepresentation).15 Plaintiffs’ boilerplate allegations that Defendants’ withholding of allegedly material information (see CC, ¶¶ 166, 185, 209, 210, 270) induced Plaintiffs to purchase VIZIO Smart TVs (see CC, ¶¶ 13 Buckland v. Threshold Enters., Ltd., 155 Cal. App. 4th 798, 810 (2007) (CLRA), disapproved on other grounds, Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011); In re Tobacco II Cases, 46 Cal. 4th 298, 325-26 (2009) ( (UCL); Baghdasarian v. Amazon.com, Inc., 2009 WL 4823368, *6 (C.D. Cal. Dec. 9, 2009) (UCL); Rosado v. eBay Inc., 53 F. Supp. 3d 1256, 1266 (N.D. Cal. 2014) (FAL); Health Ins. Co., 2011 WL 13044240, *8 (W.D. Wash. Feb. 10, 2011) (WCPA). 14 See e.g. Mirkin v. Wasserman, 5 Cal. 4th 1082, 1088-89 (1993) (California law); In re Cascade Int’l Sec. Litig., 840 F. Supp. 1558, 1571 (S.D. Fla. 1993) (Florida law); Van de Velde v. Coopers & Lybrand, 899 F. Supp. 731, 738 (D. Mass. 1995) (Massachusetts law); BP W. Coast Prod. LLC v. SKR Inc., 989 F. Supp. 2d 1109, 1120 (W.D. Wash. 2013) (Washington law); In re Lehman Bros. Sec. & ERISA Litig., 2013 WL 5730020, *4 (S.D.N.Y. Oct. 22, 2013) (New York law). 15 Fox v. Pollack, 181 Cal. App. 3d 954, 962 (1986) (California law); In re Cascade , 840 F. Supp. at 1571 (Florida law); In re Access Cardiosystems, Inc., 404 B.R. 593, 648 (Bankr. D. Mass. 2009) (Massachusetts law), aff’d, 488 B.R. 1 (D. Mass. 2012); BP W. Coast Prod., 989 F. Supp. 2d at 1120 (Washington law); McBeth v. Porges, 2016 WL 1092692, *4 (S.D.N.Y. Mar. 21, 2016) (New York law). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 42 of 51 Page ID #:711 31 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 168, 187, 272) fall far short. To satisfy Rule 9(b)’s pleading requirement, Plaintiffs must allege reliance based on specific statements and specific products, which they have simply failed to do. Plaintiffs never allege how, when, or where any Plaintiff was deceived by or otherwise relied upon any allegedly false statement that such Plaintiff saw or any specific omission. Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1027 (N.D. Cal. 2012) (dismissing FAL claim where “Plaintiffs never alleged reliance on any specific representation or advertising in registering for or using the LinkedIn website.”). C. Plaintiffs Are Required to Plead, but Have Not Pled, Their Omission Claims with Particularity. Fraud claims based on omissions are subject to the same heightened pleading requirements as fraud claims based on affirmative misrepresentations. Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009) ([The] contention that . . . nondisclosure claims need not be pleaded with particularity is unavailing.”). “To plead the circumstances of an omission with specificity, plaintiff must describe the content of the omission and where the omitted information should or could have been revealed, as well as provide representative samples of advertisements, offers, or other representations that plaintiff relied on to make her purchase and failed to include the allegedly omitted information.” Gomez v. Carmax Auto Superstores California, LLC, 2015 WL 350219, *6 (C.D. Cal. Jan. 22, 2015) (internal quotations and citation omitted); Marolda v. Symantec Corp., 672 F. Supp. 2d 992, 1002 (N.D. Cal. 2009) (dismissing omission-based fraud claims where plaintiff failed to “provide representative samples of advertisements, offers or other representations that plaintiff relied on to make her purchase that failed to include the allegedly omitted information”). As discussed above, Plaintiffs have failed to allege facts that could show reliance upon any omissions by Defendants at the time of purchase. Plaintiffs have failed to identify any statements that any named Plaintiff actually saw (if any), much less describe a particular omission from such statement. Nor do Plaintiffs allege that any named Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 43 of 51 Page ID #:712 32 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff actually relied upon any of the “advertisements, offers or other representations” identified in the Complaint. D. To the Extent that Plaintiffs’ California False Advertising Law Claim and Plaintiffs’ Claim for Negligent Misrepresentation Under California and Washington Law Are Based on an Omissions Theory, These Claims Should Be Dismissed. The law is clear in California and Washington that a negligent omission alone is not actionable; Plaintiffs must allege an affirmative misrepresentation. See Regents of Univ. of Cal. v. Principal Fin. Grp., 412 F. Supp. 2d 1037, 1045 (N.D. Cal. 2006) (“California negligent misrepresentation law . . . does not impose liability for negligent omissions; some ‘positive assertion’ is required.”); Ross v. Kirner, 172 P.3d 701, 704 (Wash. 2007) (“An omission alone cannot constitute negligent misrepresentation”). Similarly, a claim under the FAL requires an affirmative misleading statement. See Cal. Bus. & Prof. Code § 17500 (“It is unlawful . . . to make or disseminate . . . any statement . . . which is untrue or misleading . . . .”); Norcia v. Samsung Telecommunications Am., LLC, 2015 WL 4967247, *8 (N.D. Cal. Aug. 20, 2015) (“There can be no FAL claim where there is no ‘statement’ at all.”); Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212, 1222 (C.D. Cal. 2012) (“FAL requires an untrue or misleading statement” and dismissing claims that were “based on omissions, not misleading statements or partial representations”). But Plaintiffs’ negligent misrepresentation claim is entirely based on an omission theory: that Defendants failed to disclose their alleged data collection and disclosure practices. See CC, ¶ 311 (“Defendants’ negligently concealed, suppressed, or omitted a material fact. . . . Defendants concealed the existence of the Smart Interactivity tracking software . . . and its disclosure of such viewing history, along with personally identifiable information.”). Similarly, Plaintiffs’ FAL claim is largely premised on the same alleged omission. CC, ¶ 200 (“Defendants failed to further inform Plaintiffs’ that if they take advantage of these feature and/or watch live broadcast programming on their Smart TVs, Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 44 of 51 Page ID #:713 33 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their viewing data is collected and disseminated to third parties.”). To the extent that these claims are based on an omissions theory, Plaintiffs cannot pursue them. X. PLAINTIFFS’ STATE CONSUMER PROTECTION CLAIMS MUST BE DISMISSED FOR FAILURE TO ALLEGE AN “ACTUAL INJURY” TO THE EXTENT THAT THE INJURY ALLEGED IS THE COLLECTION AND DISCLOSURE OF PERSONAL INFORMATION Claims 5, 6, 7, 8, 9, 11, 13, and 14 are based on the consumer protection statutes of California, Florida, New York, Massachusetts, and Washington (respectively). Although each statute has its own particular requirements and jurisprudence, each of the statutes requires a plaintiff to demonstrate that she suffered an actual injury before liability will attach.16 Similarly, a plaintiff alleging an FAL claim must have “suffered injury in fact and . . . lost money or property as a result of a violation of” the FAL. Cal. Bus. & Prof. Code § 17535; In re Actimmune Mktng. Litig., 2009 WL 3740648, *15 (N.D. Cal. Nov. 6, 2009) (citing Buckland, 155 Cal. App. 4th at 819). For many of the same reasons that Plaintiffs lack Article III standing (see Section IV, supra), Plaintiffs cannot satisfy the “actual damages” requirement under these statutes by merely alleging the collection and disclosure of their private information, as Plaintiffs do in the Consolidated Complaint. See CC, ¶¶ 183, 220, 240, 281. Under California law, an individual does not have a property interest in their personal information, and its disclosure is thus not an “injury” under California consumer protection statutes. See In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 714 (N.D. Cal. 2011) (where “Plaintiffs allege[d] that Defendant unlawfully shared their ‘personally identifiable information’ with third-party advertisers[,]” such “personal information does not constitute property for purposes of a UCL claim”); In re iPhone Application Litig., 2011 WL 4403963, *14 (N.D. Cal. Sept. 20, 2011) (same); Ruiz v. Gap, Inc., 540 F. 16 Falco v. Nissan N. Am. Inc., 2016 WL 1327474, *7 (C.D. Cal. Apr. 5, 2016) (CLRA); Hall v. Time Inc., 158 Cal. App. 4th 847, 847 (2008) (UCL); Himes v. Brown & Co. Sec. Corp., 518 So.2d 937, 938 (Fla. Ct. App. 1987) (FDUTPA); Pelman v. McDonald’s Corp., 237 F. Supp. 2d 512, 525 (S.D.N.Y. 2003) (NYDPA); Shaulis v. Nordstrom Inc., 120 F. Supp. 3d 40, 53 (D. Mass. 2015) (Massachusetts Unfair and Deceptive Trade Practice statute); Dilorenzo v. Costco Wholesale Co., 515 F. Supp. 2d 1187, 1198 (W.D. Wash. 2007) (WCPA). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 45 of 51 Page ID #:714 34 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supp. 2d 1121, 1127 (N.D. Cal. 2008) (dismissing UCL claim because the “unauthorized release of personal information” did not constitute an actual injury). Nor is disclosure of personal data a cognizable injury for purposes of Plaintiffs’ state consumer protection claims. In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 994 (S.D. Cal. 2014) (“[P]ersonal data does not have an apparent monetary value that fluctuates like the price of goods or services. As a result, to the extent Plaintiffs are alleging an entitlement ‘to the value of their Personal Information,’ but have not alleged a monetary loss relating to the disclosure of their Personal Information, these allegations fail under Florida law”) (internal quotations omitted); Willey v. J.P. Morgan Chase, N.A., 2009 WL 1938987, *10 (S.D.N.Y. Jul. 7, 2009) (dismissing New York Deceptive Trade Practice Act claim in data breach case because allegation of “loss of privacy . . . does not rise to the level of actual damages”); Kelley v. CVS Pharmacy, Inc., 23 Mass. L. Rptr. 87, 2007 WL 2781163, *12 (Mass. Super. Ct. 2007) (allegation that pharmacy disclosed personal information without plaintiffs’ authorization not actual injury); Gragg v. Orange Cab Co., Inc., 942 F. Supp. 2d 1111, 1118-19 (W.D. Wash. 2013) (“Plaintiff cites no Washington law that establishes that an invasion of privacy is a cognizable injury under the [consumer protection statute], and the Court has not found any such authority”). XI. PLAINTIFFS’ CLAIMS FOR VIOLATION OF PRIVACY MUST BE DISMISSED A. Plaintiffs Fail to Allege a Highly Offensive Intrusion. Under the laws of each of the four states in which Plaintiffs have alleged a common law claim for violation of privacy as well as a claim under M.G.L. c. 214, Section 1B,17 Plaintiffs must allege that the intrusion was highly offensive to the 17 M.G.L. c. 214, Section 1B similarly requires disclosure of “facts about an individual that are of a highly personal or intimate nature when there exists no legitimate countervailing interest,” Mulgrew v. City of Taunton, 574 N.E.2d 389, 393 (Mass. 1991), or “private conduct which is no business of the public and the publicizing of which is, therefore, offensive.” Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. Ct. App. 1979); Jodoin v. Baystate Health Sys., 2010 WL 1257985, *28 (D. Mass. Mar. 29, 2010), (finding no violation of privacy for sharing personal medical information, because Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 46 of 51 Page ID #:715 35 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonable person. Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286 (2009);18 Stasiak v. Kingswood Co-op, Inc., 2012 WL 527537, *2 (M.D. Fla. Feb. 17, 2012); Doe v. Gonzaga, 24 P.3d 390, 399 (Wash. 2001), rev’d on other grounds sub nom., Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1309 (M.D. Fla. 2011) (to establish intrusion claim, plaintiff must allege that “behavior is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency”), aff’d, 627 F.3d 833 (11th Cir. 2010); Mark v. Seattle Times, 635 P.2d 1081, 1094 (Wash. 1981) (“The interference with a plaintiff’s seclusion must be a substantial one resulting from conduct of a kind that would be offensive and objectionable to the ordinary person.”); see also, Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912, 916 (Mass. 1991) (violation under Massachusetts privacy claim must be unreasonable and either serious or substantial). Courts consistently hold that mere alleged disclosure of information or viewing history does not establish claim for an offensive intrusion of privacy. For example, in Low v. LinkedIn Corp., 900 F. Supp. 2d 1010 (N.D. Cal. 2012), plaintiffs alleged that LinkedIn collected and distributed the LinkedIn ID and the URL of the LinkedIn profile page that the user viewed to third parties that in turn could de-anonymize this data and determine the specific individual. The court found that the defendant’s conduct did not amount to a “serious” invasion of privacy. Id. at 1025.19 Similarly, Plaintiffs’ allegation even if individuals could de-anonymize the data to identify a specific individual, “no private information was shared”). 18 The California Constitutional law right to privacy “sets standards similar to the common law tort of intrusion,” and has “parallel elements” that include “(1) the nature of any intrusion upon reasonable expectations of privacy, and (2) the offensiveness or seriousness of the intrusion.” Hernandez, 47 Cal. 4th at 287-88. Any analysis of this right to privacy would equally apply to the common law tort of violation of privacy based on intrusion. 19 See also, In re Google Android Consumer Privacy Litig., 2013 WL 1283236, *4 (N.D. Cal. Mar. 26, 2013) (tracking and sharing highly detailed and confidential PII over substantial period of time without plaintiffs’ knowledge or consent not serious or offensive enough to constitute invasion of privacy); Yunker v. Pandora Media, Inc., 2013 WL 1282980, *14-15 (N.D. Cal. Mar. 26, 2013) (same); In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1063 (N.D. Cal. 2012) (“Even assuming this information was transmitted without Plaintiffs’ knowledge and consent, a fact disputed by Defendants, such disclosure [of information including device identifier number, personal data, and Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 47 of 51 Page ID #:716 36 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that Defendants disclosed users’ viewing history and anonymous information is insufficient to state a claim for an offensive intrusion, even if the data is collected and disclosed without the users’ knowledge or consent. Courts have also held that the use of personal information to engage in targeted advertising is nothing but routine commercial behavior. Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 986, 992-93 (2011) (“Here, the supposed invasion of privacy essentially consisted of [defendant] obtaining plaintiff's address without his knowledge or permission, and using it to mail him coupons and other advertisements. This conduct is not an egregious breach of social norms, but routine commercial behavior.”). Since Plaintiffs have failed to show that Defendants collected and disclosed data for an “offensive or improper purpose,” Plaintiffs’ intrusion upon seclusion claim should be dismissed. B. Plaintiffs Have No Reasonable Expectation of Privacy in the Information Collected. Plaintiffs also have entirely failed to allege that they have a reasonable expectation of privacy in the information allegedly collected and disclosed. “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 37 (1994). Only the most sensitive and confidential information triggers this particular tort. In re Yahoo Mail Litig., 7 F. Supp. 3d 1016 (N.D. Cal. 2014) is instructive. In In re Yahoo, the plaintiffs alleged that Yahoo scanned and stored the content of Yahoo Mail users’ emails. Id. at 1021. The court held that while there could be a “legally protected privacy interest or reasonable expectation of privacy in any confidential and sensitive content within emails,” there is no reasonable expectation of privacy in emails generally. Id. at 1040. “To the extent Plaintiffs claim a legally protected privacy interest and geolocation information] does not constitute an egregious breach of social norms.”); Stasiak v. Kingswood Co-op, Inc., 2012 WL 527537, *3 (M.D. Fla. Feb. 17, 2012) (dismissing an invasion of privacy claim for obtaining consumer reports without a permissible purpose, because the intrusion “does not rise to the level of ‘intolerable in a civilized society’”). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 48 of 51 Page ID #:717 37 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonable expectation of privacy in email generally based on the mere fact that Yahoo intercepted and distributed their emails, regardless of the specific content in the emails, [p]laintiffs’ claim fails as a matter of law.” Id. Here, Plaintiffs have entirely failed to allege how their viewing history (the only data that forms the basis for this claim, CC ¶ 129) is confidential or sensitive in any way. See CC ¶¶ 295-296.20 There is no allegation that Plaintiffs’ specific “viewing data” (or any other information allegedly collected by Defendants) constitutes particularly confidential or sensitive information. And as Yahoo establishes, Plaintiffs cannot claim a legally protected privacy interest based on the mere collection of viewing data, “regardless of the specific content” of such data. XII. PLAINTIFFS FIFTEENTH CLAIM FOR UNJUST ENRICHMENT SHOULD BE DISMISSED FOR FAILURE TO ALLEGE THE LACK OF AN ADEQUATE LEGAL REMEDY. A majority of California courts hold that “unjust enrichment” is not a separate cause of action under California Law. Aguiar v. Merisant Co., 2014 WL 6492220, *9 (C.D. Cal. Mar. 24, 2014) (“Defendants contend that California law does not recognize a cause of action for unjust enrichment. The Court agrees.”); see also Hart v. BHH, LLC, 2016 WL 2642228, *5 (S.D.N.Y. May 5, 2016) (collecting California federal cases and finding that “a majority of courts—including federal courts sitting in California—have found that such claims are not cognizable under California law”). Plaintiffs’ California- based “unjust enrichment” claim should be dismissed on this basis. The courts of Florida, Massachusetts, New York, and Washington all require Plaintiffs to allege that there is no adequate legal remedy in order to sustain an unjust enrichment cause of action. Denarii Sys., LLC v. Arab, 2013 WL 6162825, *6 (S.D. Fla. Nov. 25, 2013) ( “‘[T]o properly state a claim for unjust enrichment [under Florida law], 20 Plaintiffs do not separately allege that the collection of information other than viewing data triggers the tort of invasion of privacy. Even if they did, Plaintiffs have not alleged how anonymous identifiers constitute confidential or sensitive pieces of information. See In re Zynga Privacy Litig., 750 F.3d at 1108 (law allows warrantless collection of email and IP addresses because information is not revealing). Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 49 of 51 Page ID #:718 38 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a party must allege that no adequate legal remedy exists.’”) (internal citations omitted); In re Lupron Mktg. & Sales Practices Litig., 295 F. Supp. 2d 148, 182 (D. Mass. 2003) (dismissing unjust enrichment claim where Plaintiffs had adequate remedy at law under RICO claims); Samiento v. World Yacht Inc., 883 N.E.2d 990, 996 (N.Y. 2008) (affirming dismissal of unjust enrichment claim because “plaintiffs have an adequate remedy at law”); Blue Nile, Inc. v. Ice.com, Inc., 478 F. Supp. 2d 1240, 1251 (W.D. Wash. 2007) (dismissing unjust enrichment claim because it was equivalent to statutory copyright claim). Here, Plaintiffs have not and cannot allege that there is no adequate legal remedy for the complained-of conduct. Plaintiffs have asserted both fraud and consumer protection claims based on the same facts as their unjust enrichment claim. (CC ¶¶150- 172, 173-194, 203-226, 227-241, 250-253, 263-287, 301-309, 310-317.) As Plaintiffs have an adequate legal remedy under each of the state laws for any purported harm implicated by their unjust enrichment claim, their Fifteenth Claim for unjust enrichment should be dismissed. Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 50 of 51 Page ID #:719 39 MEMO. OF POINTS AND AUTHORITIES IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XIII. CONCLUSION For the reasons stated above, Defendants respectfully request that Plaintiffs’ Complaint be dismissed in its entirety. Dated: September 19, 2016 AKIN GUMP STRAUSS HAUER & FELD LLP By: /s/ Hyongsoon Kim Anthony T. Pierce (admitted pro hac vice) apierce@akingump.com 1333 New Hampshire Avenue NW Suite 1500 Washington, DC 20036 Tel: 202-887-4000 Fax: 202-887-4288 Hyongsoon Kim (SBN 257019) kimh@akingump.com 4 Park Plaza, Suite 1900 Irvine, CA 92614 Tel: 949-885-4100 Fax: 949-885-4101 Patrick Eoghan Murray (SBN 293765) pmurray@akingump.com 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Tel: 310-229-1000 Fax: 310-229-1001 Attorneys for Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC Case 8:16-ml-02693-JLS-KES Document 116-1 Filed 09/19/16 Page 51 of 51 Page ID #:720 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: Vizio, Inc., Consumer Privacy Litigation This document relates to: ALL ACTIONS MDL Case No. 8:16-ml-02693-JLS-KES [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 9(b), 12(b)(1) and 12(b)(6) Date: December 16, 2016 Time: 2:30 p.m. Place: Courtroom 10A Judge: Hon. Josephine L. Staton Case 8:16-ml-02693-JLS-KES Document 116-2 Filed 09/19/16 Page 1 of 4 Page ID #:721 1 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 16, 2016 at 2:30 p.m., in Courtroom 10A of the Ronald Reagan Federal Building and United States Courthouse for the Central District of California, located at 411 W. Fourth St., Santa Ana, CA 92701, Defendants’ VIZIO Inc., VIZIO Holdings, Inc., VIZIO Inscape Technologies, LLC, and VIZIO Inscape Services, LLC (collectively “Defendants’”) Motion to Dismiss came on for hearing before this Court. The parties appeared through their counsel of record. After considering all of the papers filed herein, the authorities submitted by counsel, as well as counsel’s oral arguments, good cause appearing therefore, Defendants’ Motion is HEREBY GRANTED AS FOLLOWS: 1. Plaintiffs’ Complaint is dismissed in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, because Plaintiffs have not plead the requisite injury-in-fact required to support Article III standing for each of their claims. 2. Plaintiffs’ claim under the Video Privacy Protection Act (“VPPA”) (Claim 1) is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiffs’ allegations establish that Defendants are not “video tape service providers;” that Plaintiffs are not “consumers” of such a “provider;” and that Defendants did not disclose Plaintiffs’ “personally identifiable information.” 3. Plaintiffs’ claims under California Civil Code § 1799.3 (Claim 4), New York Gen. Bus. Law §§ 670-675 (Claim 10), and Massachusetts Gen. Laws Ann. Ch. 93 § 106 (Claim 12) are dismissed pursuant to Rule 12(b)(6) because those claims are state-law analogs to the VPPA and must be dismissed for the same reasons as the VPPA claim. 4. Plaintiffs’ claim under the Wiretap Act (Claim 2) is dismissed pursuant to Rule 12(b)(6) because Plaintiffs’ allegations establish that Defendants do not “intercept” their communications “in transmission,” and that Defendants do not capture the “contents” of their communications. Case 8:16-ml-02693-JLS-KES Document 116-2 Filed 09/19/16 Page 2 of 4 Page ID #:722 2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Plaintiffs’ claim under the California Invasion of Privacy Act (“CIPA”) (Claim 3) is dismissed pursuant to Rule 12(b)(6) for the same reasons as the Wiretap Act claim. 6. Plaintiffs’ claims under state consumer protection statutes (Claims 5, 6, 8, 9, 11, 13, and 14) are dismissed pursuant Rule 12(b)(6) because Plaintiffs fail to allege any actual injury. 7. Plaintiffs’ claim under California’s False Advertising Law (Claim 7), Plaintiffs’ claim under Washington’s Consumer Protection Act (Claim 14), and Plaintiffs’ claim for negligent misrepresentation under California and Washington law (Claim 19) are dismissed pursuant to Rule 12(b)(6) to the extent they are based on an omissions theory, because California and Washington do not recognize claims of negligent omission. 8. Plaintiffs’ claims grounded in fraud (Claims 5, 6, 7, 8, 9, 11, 14, 18, and 19) are dismissed pursuant to Rule 12(b)(6) and Rule 9(b) because such claims are not pled with particularity. The complaint does not allege with particularity what specific representations the named Plaintiffs saw, when they saw the representations, or that the named Plaintiffs relied on the misrepresentations. 9. Plaintiffs’ common law and statutory claims for violation of privacy (Claims 13 and 16) are dismissed pursuant to Rule 12(b)(6) because Plaintiffs’ allegations establish that there was no highly offensive intrusion and because Plaintiffs have no reasonable expectation of privacy in the information allegedly collected. 10. Plaintiffs’ claim for unjust enrichment (Claim 15) is dismissed pursuant to Rule 12(b)(6) because Plaintiffs’ Complaint establishes that there is an adequate legal remedy. Furthermore, Plaintiffs’ claim for unjust enrichment under California law is not cognizable under California law, and is dismissed on that basis. 11. Plaintiffs’ Complaint is dismissed in its entirety pursuant to Rule 12(b)(6) because it engages in impermissible “group pleading” by referring to all Defendants Case 8:16-ml-02693-JLS-KES Document 116-2 Filed 09/19/16 Page 3 of 4 Page ID #:723 3 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 collectively without adequately explaining which allegations are addressed to which defendants. IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss is GRANTED. Plaintiffs’ Complaint is dismissed WITH PREJUDICE. IT IS SO ORDERED. Dated: HON. JOSEPHINE L. STATON United States District Judge Case 8:16-ml-02693-JLS-KES Document 116-2 Filed 09/19/16 Page 4 of 4 Page ID #:724 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AKIN GUMP STRAUSS HAUER & FELD LLP ANTHONY T. PIERCE (admitted pro hac vice) apierce@akingump.com 1333 New Hampshire Avenue NW, Suite 1500 Washington, DC 20036 Tel: 202-887-4000 Fax: 202-887-4288 HYONGSOON KIM (SBN 257019) kimh@akingump.com 4 Park Plaza, Suite 1900 Irvine, CA 92614 Tel: 949-885-4100 Fax: 949-885-4101 PATRICK EOGHAN MURRAY (SBN 293765) pmurray@akingump.com 1999 Avenue of the Stars Suite 600 Los Angeles, CA 90067 Tel: 310-229-1000 Fax: 310-229-1001 Attorneys for Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re: Vizio, Inc., Consumer Privacy Litigation This document relates to: ALL ACTIONS MDL Case No. 8:16-ml-02693-JLS-KES REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 9(b), 12(b)(1) and 12(b)(6) Date: December 16, 2016 Time: 2:30 p.m. Place: Courtroom 10A Judge: Hon. Josephine L. Staton Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 1 of 14 Page ID #:725 1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFS.’ MOTION TO DISMISS MDL Case No. 8:16-ml-02693-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Federal Rule of Evidence 201(c), Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC request that the Court take judicial notice of the following court record, a copy of which is attached hereto as Exhibit A: Order Granting Defendants’ Motion to Dismiss Plaintiff’s First Amended Class Action Complaint, Ryan Perry v. Cable News Network, Inc., et al., N.D. Ga. Case No. 1:14-cv-02926-ELR, filed April 20, 2016 (ECF No. 66). Judicial notice of this Order is proper under Rule 201, which allows federal courts to take judicial notice of matters of record “not subject to reasonable dispute” that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”) (internal quotation marks and citation omitted). Dated: September 19, 2016 AKIN GUMP STRAUSS HAUER & FELD LLP By: /s/ Hyongsoon Kim Anthony T. Pierce (admitted pro hac vice) apierce@akingump.com 1333 New Hampshire Avenue NW, Suite 1500 Washington, DC 20036 Tel: 202-887-4000 Fax: 202-887-4288 Hyongsoon Kim (SBN 257019) kimh@akingump.com 4 Park Plaza, Suite 1900 Irvine, CA 92614 Tel: 949-885-4100 Fax: 949-885-4101 Patrick Eoghan Murray (SBN 293765) pmurray@akingump.com 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Tel: 310-229-1000 Fax: 310-229-1001 Attorneys for Defendants VIZIO Holdings, Inc., VIZIO, Inc., VIZIO Inscape Services, LLC, and VIZIO Inscape Technologies, LLC Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 2 of 14 Page ID #:726 Exhibit A 2 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 3 of 14 Page ID #:727 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ' RECEIVED IN CLERK'S OFFICE U.S.D.C. -Atlanta RYAN PERRY, individually and on * behalf of all others similarly situated, * APR 2 0 2016 * * Plaintiff, * v. * JArv1E¥)�;.�f ]·T,EN, Clerk By: �lerk 1:14-C��029;6-ELR c(l · * CABLE NEWS NETWORK, INC., a * Delaware corporation, and CNN * INTERACTIVE GROUP, INC., a * Delaware corporation, * * Defendants. * * O R D E R This matter is before the Court on Defendants' Motion to Dismiss Plaintiffs First Amended Class Action Complaint. (Doc. No. 49.) For the reasons set forth herein, the Court grants Defendants' motion. I. BACKGROUND1 Defendant Cable News Network Inc. ("CNN"),2 a Delaware corporation with its principal place of business in Atlanta, Georgia, is one of the largest As it must, the Court accepts as true all well-pied factual allegations contained in the First Amended Complaint. 2 Defendant CNN Interactive Group, Inc. is CNN' s subsidiary responsible for development and distribution of the CNN mobile app. Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 1 of 11 3 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 4 of 14 Page ID #:728 producers of television news programming worldwide. In addition to its television programming, it offers content via a mobile device application ("the CNN App"). With the CNN App, users can access breaking news and watch video clips of coverage. To gain access to the CNN App on an iPhone, one need only download the app from the Apple iTunes Store. Beginning in early 2013, Plaintiff began using the CNN App on his iPhone to read news stories and watch video clips. At no point did Plaintiff consent or otherwise permit CNN to disclose any of his personally identifiable information to any third parties. Unbeknownst to users, however, the CNN App maintains a record of each time a user views a news story, video clip, or headline. After the user closes the CNN App, a complete record of the user's activities, as well as a media access control address ("MAC address"), is sent to non-party Bango, a data analytics company specializing in tracking individual user behaviors via the Internet and mobile applications.3 Bango then uses identifiers, such as the MAC address, "to actually identify users and attribute their private viewing habits to their digital dossiers." (First. Am. Comp!. if 26, Doc. No. 25.) Plaintiff brought this putative class action action on February 18, 2014, asserting just one cause of action: violation of the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710. He alleges that the MAC address and video viewing 3 "A MAC address is a unique numeric string assigned to network hardware in the iPhone." (First Am. Comp!. if 14 n. 3, Doc. No. 25.) 2 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 2 of 11 4 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 5 of 14 Page ID #:729 records constitute personally identifiable information, as contemplated by the statute. II. LEGAL STANDARD When considering a 12(b)(6) motion to dismiss, the Court must accept as true the allegations set forth in the complaint drawing all reasonable inferences in the light most favorable to the plaintiff. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); U.S. v. Stricker, 524 F. App'x 500, 505 (11th Cir. 2013) (per curiam). Even so, a complaint offering mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Igbal, 556 U.S 662, 678, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 555); accord Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007). Further, the complaint must "contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face."' Id. (citing Twombly, 550 U.S. at 570). Put another way, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This so-called "plausibility standard" is not akin to a probability requirement; rather, the plaintiff must allege sufficient facts such that it is reasonable to expect that discovery will lead to evidence supporting the claim. Id. 3 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 3 of 11 5 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 6 of 14 Page ID #:730 Even if it is extremely unlikely that a plaintiff will recover, a complaint may nevertheless survive a motion to dismiss for failure to state a claim, and a court reviewing such a motion should bear in mind that it is testing the sufficiency of the complaint and not the merits of the case. Twombly, 550 U.S. at 556; see Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356, 1359 (S.D. Fla. 2004). III. ANALYSIS A. Standing Defendants assert that Plaintiff lacks standing to bring this cause of action. To successfully establish standing, "a plaintiff must show that (1) it suffered an actual injury that is concrete and particularized, not conjectural or hypothetical; (2) the injury was caused by the challenged conduct; and (3) there is a likelihood the injury could be redressed by a favorable decision." Blue Martini Kendall, LLC v. Miami Dade Cty. Fla., No. 14-13722, 2016 WL 1055826, at *4 (11th Cir. Mar. 1 7, 2016). Defendants suggest that Plaintiff is unable to show an actual injury. The VPPA expressly provides that "[a]ny person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court." 18 U.S.C. § 2710(c)(l ) (emphasis added). "History associates the word 'aggrieved' with a congressional intent to cast the standing net broadly beyond the common-law interests and substantive statutory rights upon which 'prudential' standing traditionally rested." Fed. Election Cmm'n v. Akins, 524 U.S. 4 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 4 of 11 6 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 7 of 14 Page ID #:731 11, 19 (1998). "Here, therefore, because the Plaintiff is alleging a violation of the VPPA, he alleges an injury." Ellis v. Cartoon Network, Inc., No. 1:14-cv-484- TWT, 2014 WL 5023535, at *2 (N.D. Ga. Oct. 8, 2014). See also Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014). B. The VPPA Claim The VPP A was enacted "to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials . . . . " 134 Cong. Rec. S5396-08, S. 2361 (May 10, 1988). Generally speaking, the VPPA prohibits video tape service providers from knowingly disclosing personally identifiable information concerning a consumer. 18 U.S.C. § 2710(b)( l ). "Under the VPPA, the term consumer means any renter, purchaser, or subscriber of goods or services from a video tape service provider." Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1253 (11th Cir. 2015) (quoting 18 U.S.C. § 2710(a)(l) (internal quotation marks omitted)). "The term personally identifiable information includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider." Id. a. Whether Plaintiff is a "Consumer" Plaintiff alleges that he qualifies as either a subscriber or a renter, and therefore is a consumer as contemplated by the VPP A. 5 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 5 of 11 7 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 8 of 14 Page ID #:732 Addressing the definition of a subscriber under strikingly similar circumstances,4 the Eleventh Circuit recently held that an individual who viewed video content on a free mobile app was not a consumer under the statute: Mr. Ellis did not sign up for or establish an account with Cartoon Network, did not provide any personal information to Cartoon Network, did not make any payments to Cartoon Network for use of the CN app, did not become a registered user of Cartoon Network or the CN app, did not receive a Cartoon Network ID, did not establish a Cartoon Network profile, did not sign up for any periodic services or transmissions, and did not make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content. Mr. Ellis simply watched video clips on the CN app, which he downloaded onto his Android smartphone for free. In our view, downloading an app for free and using it to view content at no cost is not enough to make a user of the app a "subscriber" under the VPP A, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app. Importantly, such a user is free to delete the app without consequences whenever he likes, and never access its content again. The downloading of an app, we think, is the equivalent of adding a particular website to one's Internet browser as a favorite, allowing quicker access to the website's content. Under the circumstances, Mr. Ellis was not a "subscriber" of Cartoon Network or its CN app. Ellis, 803 F.3d at 1257. For the same reasons as the Court in Ellis, this Court finds that Plaintiff does not qualify as a subscriber. Plaintiff has not alleged that he did anything other than watch video clips on the CNN App, which he downloaded onto his iPhone for free. Further, there is no indication that he had any ongoing commitment or relationship 4 Not only did the plaintiff in Ellis allege identical facts, with the exception of the type of smartphone used, but also the plaintiff in Ellis had many of the same counsel as Plaintiff today. 6 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 6 of 11 8 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 9 of 14 Page ID #:733 with Defendants, such that he could not simply delete the CNN App without consequences. 5 Plaintiff additionally argues that he qualifies as a "renter" under the statute, arguing that the term "rent" merely implies the exchange of benefit between parties. The Court is not persuaded by Plaintiffs overly expansive definition of the term, and instead follows the reasoning of courts in this and other districts holding that the term renter "necessarily impl[ies] payment of money .... " In re Hulu Privacy Litig., No. C 11-03764 LB, 2012 WL 3282960, at *8 (N.D. Cal. Aug. 10, 2012); Locklear v. Dow Jones & Co., Inc., 101 F. Supp. 3d 1312, 1316 (N.D. Ga. 2015), abrogated on other grounds by Ellis, 803 F.3d 1251. The Court finds that the plain and ordinary meaning of the term "rent" supports this conclusion. MERRIAM-WEBSTERS'S COLLEGIATE DICTIONARY 1054 (11th ed. 2014) (defining 5 Plaintiff, in response to the Eleventh Circuit's decision in Ellis, requests the opportunity to amend his complaint. Specifically, he states that he will plead facts sufficient to establish that he was a subscriber. First, he would plead that CNN's express purpose in creating the app was to create an ongoing relationship with its users. Second, he will allege facts showing the relationship he had with CNN was as close to, if not closer than, a user who completes a formal registration process. Finally, he will allege that he subscribes to CNN's television programming through his cable service provider, creating the requisite relationship. While ordinarily leave to amend shall be freely given, such leave is not required where any amendment would be futile. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004). As will be discussed more infra, the Court finds that amendment would be futile where, as here, Plaintiffs complaint is due to be dismissed for an independent reason. Second, the Court fails to see how the addition of these facts would alter the Court's conclusion as to whether Plaintiff is a subscriber. For one, the Court is not persuaded that CNN's motivation in creating the app would alter the conclusion reached in Ellis. Indeed, it is extremely likely that Cartoon Network's motivation for its app was the same. In the same vein, the Ellis court already addressed whether the downloading of a free app, without more, makes an individual a "subscriber" under the statute. Finally, the fact that Plaintiff has a cable television account wherein he pays a third-party cable service provider and can view CNN programming does not somehow convert Plaintiff into a subscriber of CNN's free mobile app. 7 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 7 of 11 9 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 10 f 4 Page ID #:734 "rent" as "an agreed sum paid at fixed intervals by a tenant to the landlord"); BLACK'S LAW DICTIONARY 1489 (10th ed. 2014) (defining the verb "rent" as "to pay for the use of another's property"). Because the CNN app was free of charge, and Plaintiff has not indicated that he made any sort of payments to Defendants, he is not a "renter." Based on the foregoing, the Court finds that Plaintiff does not qualify as a "consumer" as contemplated by the VPPA. Accordingly, Defendants' motion to dismiss is due to be granted. b. Whether Plaintiff's MAC Address and Video History are "Personally Identifiable Information" Even if Plaintiff could establish he was a consumer, the Court would nonetheless find dismissal appropriate because the MAC address and associated video logs do not qualify as personally identifiable information. Personally identifiable information is defined as "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider." 18 U.S.C. § 2710(a)(3). As one court put it, "[t]he VPPA requires identifying the viewers and their video choices." In re Hulu Privacy Litig., No. C 11-03764 LB, 2014 WL 1724344, at *12 (N.D. Cal. Apr. 28, 2014 ). Stated differently, "personally identifiable information is that which, in its own right, without more, links an actual person to actual video materials." Ellis, 2014 WL 5023535, at *3 (quoting In re Nickelodeon Consumer 8 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 8 of 11 10 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 11 f 4 Page ID #:735 Privacy Litig., MDL No. 2443 (SRC), 2014 WL 3012873, at *10 (D.N.J. July 2, 2014) (internal quotations and alterations omitted)), affirmed on other grounds by Ellis, 803 F .3d 1251. A number of courts, addressing similar factual situations, have held that an anonymous string of numbers, such as the MAC address here, is insufficient to qualify as personally identifiable information. Eichenberger v. ESPN, Inc., No. Cl4-463 TSZ, 2015 WL 7252985, at* (W.D. Wash. May 7, 2015) ("In light of the VPPA's text and legislative history, 'personally identifiable information' under the VPP A means information that identifies a specific individual and is not merely an anonymous identifier. As the Court noted in its previous Minute Order, plaintiffs allegation that defendant disclosed his Roku device serial number and a record of what he watched does not sufficiently plead that defendant disclosed PII."); Ellis, 2014 WL 5023535, at *3 (disclosure of the plaintiffs Android ID, a randomly generated number unique to each user and device, does not qualify as personally identifiable information because the ID was not akin to a name and did not specifically identify any person);6 In re Nickelodeon, 2014 WL 3012873, at *10 (disclosure of each plaintiffs "anonymous usemame, IP address, browser setting, unique device identifier, operating system, screen resolution, browser version, and 6 While the Eleventh Circuit expressly declined addressing the merits of the district court's holding regarding personally identifiable information, the Ellis decision left the holding of the district court in tact. 9 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 9 of 11 11 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 12 f 4 Page ID #:736 detailed URL requests and video materials requested and obtained," even considered in the aggregate, do not identify a plaintiff and therefore do not qualify as personally identifiable information under the VPPA); In re Hulu, 2014 WL 1724344, at * 12 (finding that disclosure of a unique identifier, without more, does not violate the VPP A). The Court is persuaded by the reasoning of these courts, and reaches the same conclusion today.7 Plaintiff has merely pied that Defendants disclosed his MAC address along with the viewing history tied to that address. He has not, however, pied any facts to establish that the video history and MAC address were tied to an actual person and disclosed by Defendants. Because Plaintiff has not established that Defendants disclosed any personally identifiable information, his claim must fail. 7 Plaintiff also argues that Bango is able to automatically identify individuals based on CNN's disclosure. As the district court held in Ellis, however, emphasis falls "on disclosure, not comprehension by the receiving person." 2014 WL 5023535, at *3. Further, "[f]rom the information disclosed by [Defendants] alone, Bango could not identify the Plaintiff or any other members of the putative class." Id. In fact, the Hulu court recognized an important distinction: had Defendants disclosed the unique identifier along with some sort of correlating look-up table, a violation might be present. 2014 WL 1724344, at * 11. Here, however, Plaintiff does not allege that Defendants provided both pieces to the puzzle. Rather, Plaintiff alleges that Bango could, with the information provided by Defendants, achieve such a result. Accordingly, Plaintiff fails to establish that Defendants, and not the third party, disclosed personally identifiable information. Eichenberger, 2015 WL 7252985, at *6; see also Locklear, 2015 WL 1730068, at *6. 10 Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 10 of 11 12 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 13 of 14 Page ID #:737 IV. CONCLUSION For the reasons stated herein, the Court GRANTS Defendants' Motion to Dismiss. (Doc. No. 49.) The Court also GRANTS Defendants' Motion for Leave to File Response to Plaintiff's Supplemental Brief (Doc. No. 64.) The Court DIRECTS the Clerk to CLOSE this case. th SO ORDERED, this 20 day of April, 2016. 11 �cuu!Z/#� Eleanor L. Ross United States District Judge Northern District of Georgia Case 1:14-cv-02926-ELR Document 66 Filed 04/20/16 Page 11 of 11 13 Case 8:16-ml-02693-JLS-KES Document 116-3 Filed 09/19/16 Page 14 of 14 Page ID #:738