and Submitted October 3, 2017 Pasadena, California
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
A. Lawson (argued), Roger Perlstadt, and Ryan D. Andrews,
Edelson PC, Chicago, Illinois, for Plaintiff-Appellant.
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.
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.
Privacy Protection Act
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
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.
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.
panel concluded that the plaintiff therefore failed to state
a claim under Rule 12(b)(6).
GRABER, Circuit Judge.
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.
AND PROCEDURAL HISTORY
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. ...