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Eichenberger v. Espn, Inc.

United States Court of Appeals, Ninth Circuit

November 29, 2017

Chad Eichenberger, Plaintiff-Appellant,
v.
Espn, Inc., a Delaware corporation, Defendant-Appellee.

          Argued and Submitted October 3, 2017 Pasadena, California

         Appeal from the United States District Court for the Western District of Washington D.C. No. 2:14-cv-00463-TSZ Thomas S. Zilly, Senior District Judge, Presiding

          John A. Lawson (argued), Roger Perlstadt, and Ryan D. Andrews, Edelson PC, Chicago, Illinois, for Plaintiff-Appellant.

          Daniel P. Collins (argued) and Glenn D. Pomerantz, Munger Tolles & Olson LLP, Los Angeles, California; Bryan H. Heckenlively, Jonathan H. Blavin, and Rosemarie T. Ring, Munger Tolles & Olson LLP, San Francisco, California; Ana-Maria Popp, Cairncross & Hempelmann P.C., Seattle, Washington; for Defendant-Appellee.

          Marc Rotenerg and Alan Butler, Washington, D.C., as and for Amicus Curiae Electronic Privacy Information Center.

          Before: Susan P. Graber, Mary H. Murguia, and Morgan Christen, Circuit Judges.

         SUMMARY[*]

         Video Privacy Protection Act

         The panel affirmed the district court's dismissal under Fed. R. Civ. 12(b)(6) of an action alleging that ESPN, Inc. disclosed the plaintiff's "personally identifiable information" in violation of the Video Privacy Protection Act of 1998 by giving a third party, Adobe Analytics, the plaintiff's Roku device serial number and by identifying videos he watched through the WatchESPN application.

         The panel rejected ESPN's contention that the plaintiff lacked standing. The panel held that every disclosure of an individual's "personally identifiable information" and video-viewing history offends the interests that the statute protects, and that the plaintiff need not allege any further harm to have standing.

         The panel held that "personally identifiable information" under the statute means only that information that would readily permit an ordinary person to identify a specific individual's video-watching behavior. Applying that definition here, the panel concluded that an ordinary person could not use the information that ESPN allegedly disclosed to identify an individual, because the allegedly-disclosed information cannot identify an individual unless it is combined with other data in Adobe's possession-data that ESPN never disclosed and apparently never even possessed.

         The panel concluded that the plaintiff therefore failed to state a claim under Rule 12(b)(6).

          OPINION

          GRABER, Circuit Judge.

         Plaintiff Chad Eichenberger alleges that Defendant ESPN, Inc. violated the Video Privacy Protection Act of 1988 ("VPPA"), which bars a "video tape service provider" from knowingly disclosing "personally identifiable information concerning any consumer of such provider." 18 U.S.C. § 2710(b)(1). The district court dismissed the action under Federal Rule of Civil Procedure 12(b)(6) on the ground that the operative complaint fails to state a claim that the information disclosed was "personally identifiable information" within the meaning of the VPPA. We affirm.

         FACTUAL AND PROCEDURAL HISTORY

         We accept as true all factual allegations in the operative complaint, and we construe them in the light most favorable to Plaintiff as the non-moving party. Mollett v. ...


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