Pileggi v. Washington Newspaper Publishing Company, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NICOLE PILEGGI,

Plaintiff, Civil Action No. 23-345 (BAH)

v. Chief Judge Beryl A. Howell

WASHINGTON NEWSPAPER
PUBLISHING COMPANY, LLC,

Defendant.

MEMORANDUM OPINION

Plaintiff Nicole Pileggi brings this putative class action against defendant Washington

Newspaper Publishing Company, LLC, publisher of the Washington Examiner, seeking statutory

damages and declaratory and injunctive relief for alleged violation of the Video Privacy Protection

Act, 18 U.S.C. § 2710 (“VPPA”), due to defendant’s alleged knowing and unconsented-to

disclosure to Facebook, the social media platform operated by Meta Platforms, Inc. (“Meta”), of

plaintiff’s personally identifiable information (“PII”) associated with information regarding her

online viewing of audio visual material. Defendant now moves to dismiss plaintiff’s amended

complaint for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Def.’s Mot. & Mem. Supp. Mot. Dismiss

(“Def.’s Mem.”), ECF No. 21. For the reasons below, defendant’s motion is granted and plaintiff’s

Amended Complaint, ECF No. 20, is dismissed for failure to state a claim.

I. BACKGROUND

The relevant statutory, factual, and procedural background necessary to resolving

defendant’s instant motion to dismiss is summarized below.

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 A. Video Privacy Protection Act

The VPPA was enacted in 1988, long before the advent of streaming audio visual content

over the internet, following a local weekly newspaper’s publication of a profile of then Supreme

Court nominee “Robert H. Bork based on the titles of 146 films his family had rented from a video

store,” with the aim “[t]o preserve personal privacy with respect to the rental, purchase or delivery

of video tapes or similar audio visual materials.” Video Privacy Protection Act of 1988, S. Rep.

100-599, at 1, 5 (1988). 1 To this end, the VPPA prohibits “[a] video tape service provider [from]

knowingly disclos[ing], to any person, personally identifiable information concerning any

consumer of such provider.” 18 U.S.C. § 2710(b)(1). Enumerated exceptions are provided to this

prohibition, allowing, for example, disclosure when the consumer has provided “informed, written

consent,” id. § 2710(b)(2)(B), which is expressly prescribed to be “(i) [] in a form distinct and

separate from any form setting forth other legal or financial obligations of the consumer; (ii) at the

election of the consumer . . . given at the time the disclosure is sought; or . . . in advance for a set

period of time”; and “(iii) the video tape service provider has provided an opportunity, in a clear

and conspicuous manner, for the consumer to withdraw on a case-by-case basis or to withdraw

from ongoing disclosures, at the consumer’s election,” id. § 2710(b)(2)(B)(i)–(iii).

The VPPA sets out several key definitions relevant here. First, a “consumer” protected by

the nondisclosure prohibition is defined as “any renter, purchaser, or subscriber of goods or

services from a video tape service provider.” Id. § 2710(a)(1). Second, “personally identifiable

information” subject to the nondisclosure prohibition is defined as “includ[ing] information which

identifies a person as having requested or obtained specific video materials or services from a

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The article that triggered congressional focus on this issue was “The Bork Tapes” by Michael Dolan, WASH.
CITY PAPER (Sept. 25–Oct. 1, 1987), which was intended to highlight the nominee’s strict constructionist view that
the U.S. Constitution affords no penumbral guarantee of privacy.

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video tape service provider.” Id. § 2710(a)(3). Finally, a “video tape service provider” required

to comply with the nondisclosure prohibition is defined as “any person, engaged in the business .

. . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials,

. . .” Id. § 2710(a)(4). Enforcement is facilitated by authorizing “[a]ny person aggrieved by any

act of a person in violation of” the VPPA to “bring a civil action in a United States district court,”

id. § 2710(c)(1), to recover actual damages not less than liquidated damages of $2,500, punitive

damages, attorney’s fees and costs, and “such other preliminary and equitable relief as the court

determines to be appropriate,” id. § 2710(c)(2).

B. Factual Background

Defendant operates Washington Examiner, “a conservative media company that, along

with publishing internet news articles and a weekly magazine, delivers online video content to

consumers on its website.” Am. Compl. ¶ 4. Washington Examiner also offers a “free email

newsletter” that “regularly include[s] information about audio visual materials on [its] website[,]

hyperlinks to this video content,” and “embedded videos.” Id. ¶¶ 4, 15. Users may “subscribe to

its content by signing up for its newsletter and/or paying for [a] digital subscription[]” by

“provid[ing] personal information, including their email addresses and ZIP codes.” Id. ¶ 34.

Washington Examiner uses on its website a tracking tool, called Meta Pixel, which is “a

snippet of code that, when embedded on a third-party website, tracks users’ activities as users

navigate through the website.” Id. ¶¶ 36–37, 46 (citing Meta Pixel, Meta for Developers,

https://developers.facebook.com/docs/meta-pixel/ (last visited Jan. 25, 2024)). Meta Pixel “tracks

and reports [] video watching history to third parties, including Facebook,” which is “operated by

Meta.” Id. ¶ 36. To perform this function, Meta Pixel “collect[s] interactions website visitors have

with the site,” and sends the data to Facebook, “along with . . . information” that “enables Facebook

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to match [] website visitors to their respective Facebook User accounts.” Id. ¶¶ 37, 49 (quotation

marks omitted) (citing Get Started, Meta for Developers,

https://developers.facebook.com/docs/meta-pixel/get-started (last visited Jan. 25, 2024)). “Meta

Pixel tracks this data regardless of whether a user is logged into Facebook.” Id. ¶ 49. “To obtain

the code for the pixel, a website owner must . . . tell Facebook what kind of events the site wants

to track,” and “Facebook then returns the pixel code for the site administrator to embed into the

website.” Id. ¶ 52.

Washington Examiner “chose to configure the Meta Pixel” so that “Facebook receive[s]

the URL of each page consumers . . . visited, including information indicating that the page

contained a video and the title of that video, together with the consumer’s Facebook ID,” all

“without Class members’ knowledge or consent.” Id. ¶ 56. According to plaintiff, Washington

Examiner benefits from “disclosing private information about its subscribers,” in the form of

“enhanced online advertising services” from Facebook and by “selling to advertisers the

opportunity to market to its subscribers.” Id. ¶¶ 67–68.

Plaintiff “has visited the Washington Examiner website and watched videos on the site

since at least 2018,” id. ¶ 17, and also maintained a Facebook account since “approximately 2017,”

id. ¶¶ 16–17. When plaintiff “clicked on pages containing videos” on Washington Examiner’s

website, “the videos were generally displayed at the top of the page, above the text of any article,

and the videos began to play automatically.” Id. ¶ 17. On an unspecified date, plaintiff subscribed

to Washington Examiner’s newsletter by “provid[ing] [] her personal information, including her

email address and ZIP code.” Id. ¶ 14.

Although plaintiff “never consented to any sharing of her personal information or video

watching history with any third party,” Washington Examiner “sent information regarding [her]

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activity on Washington Examiner’s site to Facebook on at least 24 occasions,” id. ¶¶ 19–20, and

this information “allowed Facebook to identify [plaintiff] and learn the internet addresses or

[URLs] of the pages she had visited” on Washington Examiner’s website, including “the titles of

videos [plaintiff] had watched,” id. ¶ 21. These videos “concerned political topics, including

controversial issues and opinions that are unpopular among certain people with more liberal

political views.” Id. ¶ 18.

Plaintiff alleges that these disclosures to Facebook “violated [her] privacy interests” and

“deprived [her] of the economic value of [her] private video watching history.” Id. ¶¶ 63, 69.

Since “discover[ing]” Washington Examiner’s “disclos[ure] [of] her private video watching

information” in 2022, id. ¶ 23, plaintiff has “continue[d] to desire to watch videos on Washington

Examiner’s website” and “will continue to suffer harm if the website is not redesigned,” id. ¶ 24.

C. Procedural Background

Plaintiff sued defendant in February 2023, and filed the operative Amended Complaint in

May 2023, on behalf of herself and a putative class comprising “[a]ll Facebook account holders in

the United States who subscribed to Washington Examiner’s newsletter and/or paid digital

subscription and viewed video content on the Washington Examiner website from February 7,

2021 to the present.” Am. Compl. ¶ 70; Compl., ECF No. 1. She alleges, in a single claim, that

Washington Examiner violated the VPPA by “knowingly disclos[ing] personally identifiable

information” to Meta that “identified Plaintiff” and members of the putative class “as having

requested or obtained specific video materials and/or services from Washington Examiner”

“without their consent.” Am. Compl. ¶ 81. Plaintiff, on behalf of herself and the putative class,

seeks damages “not less than $2,500 per person,” punitive damages, attorney’s fees and costs,

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injunctive and declaratory relief, and “such other relief as this Court may deem just and proper.”

Id. at 23–24.

Defendant’s pending motion to dismiss the Amended Complaint, pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6), is now ripe for resolution. See Pl.’s Resp. Def.’s Mot.

Dismiss (“Pl.’s Opp’n”), ECF No. 22; Def.’s Reply Supp. Mot. Dismiss (“Def.’s Reply”), ECF

No. 23.

II. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff

bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim at issue.

Air Excursions LLC v. Yellen, 66 F.4th 272, 277 (D.C. Cir. 2023) (citing Kareem v. Haspel, 986

F.3d 859, 865 (D.C. Cir. 2021)); see also Dep’t of Educ. v. Brown, 600 U.S. 551, 561 (2023)

(Federal courts’ “authority under the Constitution is limited to resolving ‘Cases’ or

‘Controversies[,]’ Art. III, § 2.”). When considering a motion to dismiss under Rule 12(b)(1), the

court must determine jurisdictional questions by accepting as true all uncontroverted material

factual allegations contained in the complaint and “constru[ing] the complaint liberally, granting

plaintiff[s] the benefit of all inferences that can be derived from the facts alleged.” Hemp Indus.

Ass’n v. DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (second alteration in original) (quoting Am. Nat’l

Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)). Absent subject-matter jurisdiction, the

court must dismiss the case. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07 (2006) (citing

Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).

To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v.

Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A

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claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely

consistent with’ a defendant’s liability” and “allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556–57 (2007)); see also Banneker Ventures, LLC v. Graham, 798 F.3d

1119, 1129 (D.C. Cir. 2015) (“Plausibility requires ‘more than a sheer possibility that a defendant

has acted unlawfully.’” (quoting Iqbal, 556 U.S. at 678)).

In deciding a motion under Rule 12(b)(6), a court must consider the whole complaint,

accepting all factual allegations in the complaint as true, “even if doubtful in fact,” and construing

all reasonable inferences in the plaintiff’s favor, Twombly, 550 U.S. at 555–56; see also Atchley v.

AstraZeneca UK Ltd., 22 F.4th 204, 210 (D.C. Cir. 2022), unless “such inferences are unsupported

by the facts set out in the complaint,” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016)

(citation omitted); see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations.”). In determining

whether a complaint fails to state a claim, a court may consider only the facts alleged in the

complaint and “any documents either attached to or incorporated in the complaint and matters of

which the court may take judicial notice.” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1249

(D.C. Cir. 2020) (alterations in original accepted and citation omitted).

III. DISCUSSION

Defendant raises two grounds for dismissal, arguing, first, that subject matter jurisdiction

is lacking because plaintiff lacks standing by failing to allege a “‘concrete harm’ from a purported

statutory violation,” Def.’s Mem. at 8 (citations omitted), and, second, that plaintiff’s “allegations

. . . do not state a claim under the VPPA” for several independent reasons, id. at 1–2. District

courts should be assured of their jurisdiction before considering the merits and thus the

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jurisdictional issue is addressed first. See Hancock v. Urb. Outfitters, Inc., 830 F.3d 511, 513

(D.C. Cir. 2016) (“The district court erred at the outset when it bypassed the jurisdictional question

of [plaintiffs’] standing and dove into the merits of this case. In doing so, the district court stepped

where the Constitution forbade it to tread.”).

For the reasons set out below, while plaintiff has Article III standing to raise her VPPA

claim, she has failed to state a claim under the VPPA, and defendant’s Rule 12(b)(6) motion to

dismiss is accordingly granted.

A. Standing

To establish Article III standing, plaintiff must plausibly plead and, ultimately, prove three

elements: (1) that plaintiff suffered an “injury in fact” that is both “concrete and particularized”

and “actual or imminent, not conjectural or hypothetical,” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992) (quotation marks and citations omitted); (2) that plaintiff’s injury is “fairly []

trace[able] to the challenged action of the defendant,” meaning that “there must be a causal

connection between the injury and the conduct complained of,” id. (quotation marks and citation

omitted); and (3) that it is “likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision,” id. (quotation marks and citation omitted); see also Brown, 600

U.S. at 561; Spokeo, Inc. v. Robbins, 578 U.S. 330, 338 (2016). As the Supreme Court clarified

in TransUnion LLC v. Ramirez, violation of a statutory prohibition on certain conduct does not

automatically produce an injury sufficient to satisfy Article III’s standing requirement because “an

injury in law is not an injury in fact.” 594 U.S. 413, 427 (2021). To determine whether a statutory

infraction amounts to a concrete injury under Article III, TransUnion instructs that the harm must

bear “a close relationship to harms traditionally recognized as providing a basis for lawsuits in

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American courts,” id. at 425 (citing Spokeo, 578 U.S. at 340–41), such as “reputational harms,

disclosure of private information, and intrusion upon seclusion,” id. (collecting cases).

Defendant argues that plaintiff fails to satisfy the first prong of the standing test by

insufficiently pleading any injury-in-fact since plaintiff has alleged neither tangible economic

harm nor any cognizable intangible harm. Def.’s Mem. at 8–12. In defendant’s view, plaintiff’s

alleged harm of the “disclos[ure] [of] private [] information,” Am. Compl. ¶¶ 23, 63, is “at most a

statutory injury and lack[s] a close relationship to a traditional tort,” Def.’s Mem. at 9. Plaintiff

analogizes the violation of the VPPA’s statutory disclosure prohibition to the common-law torts

of invasion of privacy and intrusion upon seclusion, Pl.’s Opp’n at 12–13, and contends that such

“disclosure of her information to a third party in violation of a federal statute [] [was] the same

injury that the Supreme Court held [was] a ‘concrete harm’” in TransUnion, id. at 6 (citing

TransUnion LLC, 594 U.S. at 442). In fact, “[c]onsistent with [TransUnion], every federal court

that has considered this question has held that consumers whose private information is disclosed

to third parties in violation of the VPPA have Article III standing.” Id. at 6–7 (collecting cases).

Plaintiff is correct.

Prior to TransUnion, courts “consistently found that plaintiffs satisf[ied] the concreteness

requirement of Article III standing where they allege[d] a deprivation of their privacy rights under

the VPPA,” even where no harm beyond the disclosure itself was alleged. Salazar, 2023 WL

5016968, at *5 (citing Austin-Spearman v. AMC Network Ent. LLC, 98 F. Supp. 3d 662, 666–67

(S.D.N.Y. 2015) (collecting cases)); see also Eichenberger v. ESPN, Inc., 876 F.3d 979, 984 (9th

Cir. 2017) (“[E]very 18 U.S.C. § 2710(b)(1) violation present[s] the precise harm and infringe[s]

the same privacy interests Congress sought to protect by enacting the VPPA” and “Plaintiff need

not allege any further harm to have standing.” (quotation marks and citations omitted)); Perry v.

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Cable News Network, Inc., 854 F.3d 1336, 1341 (11th Cir. 2017) (“[Plaintiff] has satisfied the

concreteness requirement of Article III standing, where the plaintiff alleges a violation of the

VPPA for a wrongful disclosure.”); In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 274

(3d Cir. 2016) (concluding “the harm is [] concrete in the sense that it involves a clear de facto

injury, i.e., the unlawful disclosure of legally protected information[,]” and “Congress has long

provided plaintiffs with the right to seek redress for unauthorized disclosures of information that,

in Congress’s judgment, ought to remain private”); Sterk v. Redbox Automated Retail, LLC, 770

F.3d 618, 623 (7th Cir. 2014) (“By alleging that [defendant] disclosed their personal information

in violation of the VPPA, [plaintiffs] have met their burden of demonstrating that they suffered an

injury in fact that success in this suit would redress.”).

TransUnion does not mandate a different conclusion, as many courts to consider the issue

have held. 2 These courts have reasoned that the alleged unlawful “disclosure of [a plaintiff’s]

2
See, e.g., Lamb v. Forbes Media LLC, No. 22-cv-6319 (ALC), 2023 WL 6318033, at *8 (S.D.N.Y. Sept. 28,
2023) (“‘[A]t the pleading stage, [defendant’s] alleged disclosure of plaintiffs’ personal information and viewing
activities describes [a] traditionally recognized harm’ that is enough to confer standing.” (quoting Carter v. Scripps
Networks, LLC, No. 22-cv-2031 (PKC), 2023 WL 3061858, at *3 (S.D.N.Y. Apr. 24, 2023))); Alex v. NFL Enterprises
LLC, No. 22-cv-09239 (ALC), 2023 WL 6294260, at *3 (S.D.N.Y. Sept. 27, 2023) (“Plaintiffs have sufficiently
alleged they were injured when Defendants shared their private information and video watching data with Facebook
without consent.”), appeal docketed, No. 23-7455 (2d Cir. Oct. 20, 2023); Salazar v. Nat’l Basketball Ass’n, No. 22-
cv-7935 (JLR), 2023 WL 5016968, at *6–7 (S.D.N.Y. Aug. 7, 2023) (“Here, Plaintiff alleges that NBA.com shared
private information about . . . his video viewership to a third party without his consent or knowledge . . . . [T]hese
allegations [are] sufficient to establish concrete injury (and standing) post-TransUnion because the ‘disclosure of
private information is a harm that courts have traditionally considered to be redressable.’” (citations omitted)), appeal
docketed, No. 23-1147 (2d Cir. Aug. 10, 2023); Salazar v. Paramount Glob., No. 22-cv-756, 2023 WL 4611819, at
*7 (M.D. Tenn. July 18, 2023) (“Although Defendant attempts to make hay out of the Supreme Court’s decision in
TransUnion . . . in TransUnion, the “Supreme Court concluded that plaintiffs whose information was disclosed to a
third party suffered a concrete harm[.]” (citation omitted)), appeal docketed, No. 23-5748 (6th Cir. Aug. 21, 2023);
Adams v. Am.’s Test Kitchen, LP, No. 22-cv-11309 (AK), 2023 WL 4304675, at *5–6 (D. Mass. June 30, 2023)
(“[Plaintiff] alleges Defendants have violated her privacy rights under the VPPA by disclosing her [Facebook ID] . . .
and the video content name and its URL though their use of Pixel while she was a website subscriber. . . . Such
allegations are sufficient to establish an injury in fact.” (quotation marks and citation omitted)), appeal docketed, No.
23-1592 (1st Cir. July 24, 2023); Martin v. Meredith Corp., 657 F. Supp. 3d 277, 283 (S.D.N.Y. 2023) (“[Plaintiff’s]
allegations that the defendants disclosed his private information to a third party without his consent are sufficient to
confer standing.” (citing TransUnion LLC, 594 U.S. at 425)), appeal withdrawn, No. 23-412, 2023 WL 4013900 (2d
Cir. May 24, 2023); Feldman v. Star Trib. Media Co. LLC, 659 F. Supp. 3d 1006, 1014–16 (D. Minn. 2023) (finding
“this common law tradition” of intrusion upon seclusion “bears a close relationship to [plaintiff’s] injury allegations”
and “[t]hat seems enough at the motion-to-dismiss stage”).

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information to a third party,” Pl.’s Opp’n at 6, bears “a close relationship to harms traditionally

recognized as providing a basis for lawsuits in American courts,” TransUnion LLC, 594 U.S. at

425 (citation omitted), including the common-law tort of intrusion upon seclusion that the Supreme

Court in TransUnion expressly identified as among the “intangible harms” “qualify[ing] as

concrete injuries under Article III,” id.; see Salazar, 2023 WL 5016968, at *5 (collecting cases);

accord Eichenberger, 876 F.3d at 983 (in pre-TransUnion case, recognizing that “privacy torts do

not always require additional consequences to be actionable” and “[t]he VPPA functions in the

same way” (citing RESTATEMENT (SECOND) OF TORTS § 652B, cmt. b)); Perry, 854 F.3d at 1340–

41 (in pre-TransUnion case, finding alleged “violation of the VPPA for a wrongful disclosure”

“similar” to the tort of intrusion upon seclusion, where “[t]he intrusion itself makes the defendant

subject to liability, even though there is no publication or other use,” and plaintiff “has satisfied

the concreteness requirement of Article III standing” (citation omitted)). This reasoning is

persuasive. 3

Defendant makes two counter arguments, both of which are easily dispatched. First,

defendant contends that plaintiff’s claimed injury of “disclosure of private information” without

reputational harm, Def.’s Reply at 3, “arises only from the public disclosure of private

information,” while plaintiff alleges “only that Facebook’s computers learned information,” Def.’s

Reply at 3 (emphasis in original) (citations omitted). This narrow construction of plaintiff’s

claimed injury under the VPPA does not square with the statutory text of the VPPA’s disclosure

prohibition, which bars disclosure of relevant PII “to any person,” 18 U.S.C. § 2710(b)(1), without

also requiring that such disclosure be “public” or in some way broadly disseminated or accessible.

3
This finding that plaintiff’s alleged privacy harms are sufficient at the pleading stage for standing renders
addressing defendant’s additional arguments regarding whether Washington Examiner also injured plaintiff’s property
and economic interests by profiting from disclosure of her private information, see Def.’s Mem. at 11; Def.’s Reply
at 6, unnecessary.

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 This reading of the statutory text is consistent with the intended purpose of the statute “to

preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar

audio visual materials,” S. Rep. 100-599, at 1, and is consistent with recognized parameters of the

tort of intrusion upon seclusion, which subjects to liability for invasion of privacy, a person “who

intentionally intrudes . . . upon the solitude or seclusion of another or his private affairs or concerns,

. . . if the intrusion would be highly offensive to a reasonable person,” RESTATEMENT (SECOND)

OF TORTS § 652B. Such invasion of privacy may include “opening [] private and personal mail . .

. even though there is no publication,” id., cmt. b, and thus “does not depend upon any publicity

given to the person whose interest is invaded,” id., cmt. a; see also Salazar, 2023 WL 5016968, at

*6 (finding plaintiff’s VPPA “claim that Defendant purposefully shared his private viewing

information with a third party without Plaintiff’s knowledge or consent is akin to that type of

intrusion into his privacy” “‘even though there is no publication or other use of any kind of the . .

. information outlined’” (quoting RESTATEMENT (SECOND) OF TORTS § 652B, cmt. b, and citing

Feldman, 659 F. Supp. 3d at 1015–16 (similar)). 4

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Defendant cites two non-VPPA cases—Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236,
1246 (11th Cir. 2022) (en banc), and Crane v. Am. Bar Ass’n, 663 F. Supp. 3d 747, 753 (E.D. Mich. 2023)—as support
to argue that the injury of “disclosure of private information” requires “public disclosure,” Def.’s Reply at 2–3 & n.2
(emphasis in original), but those cases, implicating distinct statutory schemes and common-law comparator torts, have
no application here. Hunstein held that a debt collector’s disclosure in alleged violation of the Fair Debt Collection
Practices Act was not similar to the common-law tort of public disclosure as to constitute a concrete injury, where
“the disclosure alleged [] lack[ed] the fundamental element of publicity,” Hunstein, 48 F.4th at 1240, 1245–48, and
the Eleventh Circuit later distinguished Hunstein on this basis, see Drazen v. Pinto, 74 F.4th 1336, 1345 (11th Cir.
2023) (whereas “the element of publicity was ‘completely missing’” in Hunstein, “[h]ere [] none of the elements for
the common-law comparator tort [of intrusion upon seclusion] are completely missing” (quoting Hunstein, 48 F.4th
at 1245)). In Crane, the court held that the American Bar Association’s disclosure of information in alleged violation
of Michigan’s Privacy Act was not sufficiently analogous to the common-law tort of invasion of privacy, where
plaintiff “publicly advertised” the information. Crane, 663 F. Supp. 3d at 749, 752–53. Neither Hunstein nor Crane
analogized the claimed statutory injury to the common-law tort at-issue here—i.e., intrusion upon seclusion, for which
“the ‘intrusion itself’ makes the defendant liable,” Eichenberger, 876 F.3d at 983, 986 (quoting RESTATEMENT
(SECOND) OF TORTS § 652B, cmt. b) (finding plaintiff “has Article III standing to bring his [VPPA] claim because 18
U.S.C. § 2710(b)(1) is a substantive provision protecting consumers’ concrete interest in their privacy”); see also
RESTATEMENT (SECOND) OF TORTS § 652B, cmt. a (“[Intrusion upon seclusion] does not depend upon any publicity
given to the person whose interest is invaded or to his affairs.”).

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 Second, while acknowledging that “other courts have” found Article III standing by

analogizing a plaintiff’s alleged harm of disclosure of private information to the tort of intrusion

upon seclusion, Def.’s Reply at 3, defendant nonetheless strains to distinguish these cases because

none “addressed the effect of a website’s privacy policy disclosures on such an alleged injury,”

id.; see also Def.’s Mem. at 9–11. In this regard, defendant describes its privacy policies, in effect

from September 2018 to April 2023 and posted and accessible on Washington Examiner’s website,

as making clear “that the Washington Examiner and certain third parties employ cookies and

similar technologies—like the Meta Pixel—for targeted advertising and other promotional

activities.” Def.’s Mem., Christopher Reen Decl. ¶¶ 2–5, ECF No. 21-1. Pointing to the absence

of any allegations that plaintiff “was unaware of [the policies], that the Washington Examiner’s

alleged conduct conflicted with their terms, or that she attempted to express her lack of consent by

exercising the opt-out rights those policies describe,” Def.’s Reply at 4, defendant argues that

plaintiff consented to “the disclosure of personal information” by continuing to visit Washington

Examiner’s website, id. at 5 (citation omitted). At the same time, defendant concedes that a finding

of implicit consent by plaintiff due to the affirmative disclosures in Washington Examiner’s

privacy policies “would not also satisfy the VPPA’s unusual consent requirement.” Def.’s Mem.

at 10; see also Def.’s Reply at 5. Nonetheless, characterizing the VPPA’s “unusual consent

provision” as “not the normal standard for consent on the internet,” Def.’s Mem. at 9, defendant

discounts a statutory violation of the VPPA, in the context of the posted privacy policies, as “not

alleg[ing] the type of ‘sufficiently offensive conduct’” required to plead the tort of intrusion upon

seclusion, Def.’s Reply at 3. Put another way, defendant’s reasoning is that so long as a provider

of online audio-visual materials also posts a privacy policy, even one providing only a limited opt-

out for certain PII disclosures that is far less protective than the consumer’s “informed, written

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consent” opt-in requirement under the VPPA, the consumer lacks standing as an aggrieved party

to invoke the private right of action set out in this statute. See 18 U.SC. §§ 2710(b)(2)(B), (c).

Defendant cites no authority for the novel proposal that the VPPA’s explicit opt-in consent

requirement be disregarded, and other courts considering a plaintiff’s alleged implicit consent due

to posted privacy policies in the context of a VPPA standing inquiry have properly analyzed the

issue using the statutory requirements for consent under the VPPA. See, e.g., Salazar, 2023 WL

5016968, at *6 (concluding that “[a]t the pleading stage, Plaintiff has set forth enough to allege

that was offensive to a reasonable person,” where “Plaintiff alleges that he never consented to nor

was provided with any written notice that Defendant was sharing his” information, and “the

tracking pixel functionality [was] not necessary for the functioning of the NBA website but instead

was employed without his consent sole[ly for the] purpose of enriching Defendant and Facebook”

(internal quotation marks and citations omitted) (last alteration in original)). 5

This reasoning accords with Congress’s 2012 amendment to the statute, which “clarif[ied]

that video tape service providers may obtain informed, written consent of consumers on an ongoing

basis via the Internet.” Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1253 (11th Cir. 2015)

(“Congress amended the VPPA in 2012 ‘to reflect the realities of the 21st century.’” (quoting 158

Cong. Rec. H6849–01 (Dec. 18, 2012))). With this recent amendment, Congress had the

opportunity but did not alter the requirements for such consent. See VPPA Amendments Act of

2012, 126 Stat. 2414, Pub. L. 112-258 (2013); see also Golden v. NBCUniversal Media, LLC, No.

5
Defendant’s reliance on two non-VPPA cases, see Def.’s Mem. at 12–13; Def.’s Reply at 3–4, that dismissed
common-law intrusion upon seclusion claims for failure to allege “sufficiently offensive conduct” where plaintiffs
were afforded notice of defendants’ privacy policies, are inapposite, since neither case implicated the VPPA, let alone
its consent provision. See Manigault-Johnson v. Google, LLC, No. 18-cv-1032 (BHH), 2019 WL 3006646, at *6
(D.S.C. Mar. 31, 2019) (dismissing common-law intrusion upon seclusion claim where plaintiffs failed to “allege that
Defendants’ conduct violated Defendants’ privacy policies”); Deering v. CenturyTel, Inc., No. 10-cv-63 (BLG)
(RFC), 2011 WL 1842859, at *2–3 (D. Mont. May 16, 2011) (dismissing intrusion upon seclusion claim where
plaintiff “ha[d] been notified” via defendant’s privacy policy “that his Internet activity may be forwarded to a third
party” (citation omitted)).

14
22-cv-9858 (PAE), 2023 WL 5434378, at *4 n.5 (S.D.N.Y. Aug. 23, 2023) (noting the amendment

“clarif[ied] that a video tape service provider may obtain a consumer’s informed, written consent

on an ongoing basis and that consent may be obtained through the internet” (citation omitted)

(alteration in original)). As plaintiff correctly argues, accepting defendant’s reasoning would

“undo the balance Congress struck” by “effectively negat[ing] the VPPA’s consent requirement”

for purposes of the standing inquiry. Pl.’s Opp’n at 10–11. 6

In sum, plaintiff has sufficiently alleged that defendant “disclosed [her] personally

identifiable information” without her consent, see Am. Compl. ¶¶ 19, 20, 56, 60, 62, 69, 81, and

that Meta Pixel, as deployed by defendant, was “not necessary to a website’s function” but “solely

benefit[ed] website owners and their third-party partners,” id. ¶ 52. As another court recently

found on similar facts, at this pleading stage, plaintiff has “set forth enough to allege that [such

disclosure] was offensive to a reasonable person,” where a “reasonable person could find it

offensive that private and personal details of their viewing preferences were shared with a third

party without their consent so that commercial parties could profit from targeted advertisements

that were then sent to them.” Salazar, 2023 WL 5016968, at *6. This sufficiently alleges a

concrete injury to establish standing. See TransUnion LLC, 594 U.S. at 429–30.

B. Sufficiency of VPPA Claim

Defendant contends that plaintiff fails to establish the threshold element for any VPPA

claim, namely: that plaintiff qualifies as a “consumer” authorized to bring an action for violation

of this statute. Def.’s Mem. at 13. As noted, see supra, Part I.A, the VPPA creates a private right

of action for a “consumer”—defined as “any renter, purchaser, or subscriber of goods or services

6
Defendant urges that judicial notice be taken of its privacy policies, see Def.’s Reply at 4–5, but even if such
notice were taken, those policies would be immaterial to the standing inquiry, where—as is uncontested, see Def.’s
Mem. at 11—plaintiff has alleged defendant’s failure to satisfy the VPPA’s consent requirement.

15
from a video tape service provider,” 18 U.S.C. § 2710(a)(1)—to bring suit against a “video tape

service provider”—defined as “any person, engaged in the business . . . of rental, sale, or delivery

of prerecorded video cassette tapes or similar audio visual materials,” id. § 2710(a)(4),” for

“knowingly disclos[ing]” the consumer’s “personally identifiable information,” id. § 2710(b)(1),

which includes information “identif[ying] a person as having requested or obtained specific video

materials or services from a video tape service provider,” id. § 2710(a)(3). In resolving the instant

motion, defendant’s status as a “video tape service provider” is assumed, without deciding. 7

Plaintiff, indisputably, is neither a “renter” nor “purchaser” of “goods or services from a

video tape service provider” and thus to qualify as a “consumer” under the VPPA, she contends

that she is a “subscriber”—a term not further defined in the statute. See 18 U.S.C. § 2710(a)(1).

Plaintiff does not dispute that to be a “subscriber,” the VPPA requires subscribing to “audio-visual

7
Plaintiff alleges that Washington Examiner is a “‘video tape service provider’ . . . because it engaged in the
business of delivering audio visual materials similar to prerecorded video cassette tapes,” Am. Compl. ¶ 79 (quoting
18 U.S.C. § 2710(a)(4)), but defendant vigorously challenges whether the business of delivering news, including in
the form of “video clips,” fairly falls within this definition, see Def.’s Mem. at 13, 23–25 (“[T]he allegation that the
Washington Examiner provides news through video clips, as well as text, does not make it a ‘video tape service
provider’ under the VPPA because the video clips are not ‘similar audio visual materials’ to ‘prerecorded video
cassette tapes.’” (quoting 18 U.S.C. § 2710(a)(4)); Def.’s Reply at 14 (“[Plaintiff’s] argument [] that the popularity of
short-form videos today supports expanding the VPPA to cover all prerecorded videos reads ‘similar’ out of the statute
and wrests the VPPA from its historical moorings.” (emphasis in original)). This issue has not been addressed in this
Circuit. Although the phrase “similar audio visual materials” has been interpreted as “medium-neutral,” In re Vizio,
Inc., Consumer Priv. Litig., 238 F. Supp. 3d 1204, 1221 (C.D. Cal. 2017) (citation omitted), and “to include new
technologies for pre-recorded video content,” In re Hulu Priv. Litig., No. 11-cv-3764 (LB), 2012 WL 3282960, at *5–
6 (N.D. Cal. Aug. 10, 2012) (citation omitted), treatment of the audio visual content available on Washington
Examiner’s website as “similar audio visual materials” to “prerecorded video cassette tapes,” is an expansion from
the statute’s historical context, see, e.g., S. Rep. 100-599, at 12 (identifying “laser discs, open-reel movies, or CDI
technology” as examples of “similar audio visual materials”), and possibly beyond the scope of the textual tie requiring
such content to be “similar” to a video cassette tape. Moreover, to qualify as a “video tape service provider” requires
a defendant “to be engaged in the business of delivering video content” such that “the defendant’s product must [be]
. . . significantly tailored to serve that purpose.” Sellers v. Bleacher Rep., Inc., No. 23-cv-368 (SI), 2023 WL 4850180,
at *6 (N.D. Cal. July 28, 2023) (citation omitted). Based on the definitional prerequisite of “engaged in the business”
of “delivery” of “similar audio visual materials,” courts have rejected attempts to characterize “any company that
creates its own video content, however ancillary to the company’s purpose, [as] ‘engaged in the business of’ delivering
audio visual content.” Markels v. AARP, No. 22-cv-5499 (YGR), 2023 WL 6411720, at *3 (N.D. Cal. Aug. 29, 2023);
see also Sellers, 2023 WL 4850180, at *6 (collecting cases). In any event, whether Washington Examiner, as a “media
company that operates a news website and publishes a weekly magazine,” Am. Compl. ¶ 31, meets this definitional
prerequisite by making audio-visual content accessible on its website, need not be decided here, as this case is resolved
on other grounds.

16
goods or services, and not goods or services writ large,” Pl.’s Opp’n at 19 (quoting Carter, 2023

WL 3061858, at *6); see Def.’s Mem. at 16–18; Def.’s Reply at 8–9. Defendant contends that

plaintiff’s subscription to its newsletter fails to satisfy this standard, absent allegations that

plaintiff’s “status as a newsletter subscriber was a condition to accessing the site’s videos, or that

it enhanced or in any way affected [her] viewing experience.” Def.’s Reply at 8 (quoting Carter,

2023 WL 3061858, at *6 (cleaned up)); Def.’s Mem. at 16–18. Plaintiff responds that she has

sufficiently alleged that “Washington Examiner’s newsletter had a strong connection to its video

services,” and that by subscribing to its newsletter, she “was asking Washington Examiner to

regularly deliver audio-visual content directly to her.” Pl.’s Opp’n at 19. The ubiquity of the

concomitant delivery of audio-visual material with written word news and commentary, and the

First Amendment implications of tracking such information identified to a particular user, as

recognized in the crafting of the VPPA, see S. Rep. 100-599, at 4 (noting that “[p]rotecting an

individual’s choice of books and films is a second pillar of intellectual freedom under the [F]irst

[A]mendment”), underscores the importance of this question. For the reasons explained in more

detail below, however, defendant has the better of the argument. 8

While the D.C. Circuit has not had an opportunity to consider the issue, the meaning of

“subscriber” in the VPPA has been considered by two other courts of appeals, in the context of

determining whether the downloading and use of a free mobile app is sufficient to allege subscriber

status. Although diverging in their holdings on this issue, the First and Eleventh Circuits

recognized that “one can be a ‘subscriber’ without making a monetary payment,” Yershov v.

8
Given this conclusion, defendant’s alternative bases for dismissal, namely: that (1) plaintiff is not a
“consumer” because “[o]nly paying customers are consumers,” Def.’s Mem. at 18–19; (2) defendant is not a “video
tape service provider,” id. at 13, 23; (3) defendant did not disclose “personally identifiable information” because
plaintiff was not identified as “having requested or obtained specific video materials,’” id. at 4, 14–16 (quoting 18
U.S.C. § 2710(a)(3)) (emphasis omitted); and (4) defendant did not “knowingly disclose[]” the information of a
consumer, id. at 13, 22–23, need not be resolved.

17
Gannett Satellite Info. Network, Inc., 820 F.3d 482, 488 (1st Cir. 2016); Ellis, 803 F.3d at 1256,

and that subscription requires a distinct relationship with a video tape service provider, see Ellis,

803 F.3d at 1257–58 (holding that “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,’” absent an “ongoing commitment or

relationship between the user and the entity which owns and operates the app”); Yershov, 820 F.3d

at 489 (finding plaintiff qualified as a VPPA subscriber, but recognizing that subscription requires

“a relationship [with the video tape service provider] that is materially different from what would

have been the case had USA Today simply remained one of millions of sites on the web that

[plaintiff] might have accessed through a web browser”). The Eleventh Circuit offered additional

guideposts, “based on the ordinary meaning of the term ‘subscriber,’” Ellis, 803 F.3d at 1256,

interpreting the term to “involve[] some type of commitment, relationship, or association (financial

or otherwise) between a person and an entity,” id., and identifying a non-exclusive list of factors

indicative of “subscriber” status: “payment, registration, commitment, delivery, expressed

association, and/or access to restricted content,” id. (citations and brackets omitted). Likewise,

courts have generally found that “subscriber” requires “a factual nexus or relationship between the

subscription provided by the defendant and the defendant’s allegedly actionable video content.”

Tawam v. Feld Ent. Inc., No. 23-cv-357 (WQH) (JLB), 2023 WL 5599007, at *5 (S.D. Cal. July

28, 2023) (collecting cases); see also Gardener v. MeTV, No. 22-cv-5963, 2023 WL 4365901, at

*4 (N.D. Ill. July 6, 2023) (“The Court does not agree . . . that the allegations that [plaintiffs]

opened an account separate and apart from viewing video content on MeTV’s website is sufficient

to render them ‘subscribers’ under the Act.” (citation omitted)). Plaintiff has failed to allege these

indicia of a subscriber relationship.

18
 While plaintiff alleges that she subscribed to Washington Examiner’s newsletter—which

provides audio visual content but without use of the website tracking tool Meta Pixel—nowhere

does she allege that this subscription had any connection to the audio-visual content she accessed

on the separate Washington Examiner website, nor does she claim that, as a result of her newsletter

subscription, she received “access to restricted [audio-visual] content,” Ellis, 803 F.3d at 1256,

that would establish her “commitment, relationship, or association,” id., to Washington

Examiner’s “audio-visual goods or services, and not [its] goods or services writ large,” Salazar,

2023 WL 5016968, at *8 (quoting Carter, 2023 WL 3061858, at *6). Simply put, the “goods or

services” plaintiff received as a result of her newsletter subscription were entirely independent of

the audio-visual content that she consumed on Washington Examiner’s website, which allegedly

functioned with the Meta Pixel tracking tool.

Close examination of plaintiff’s allegations reveals that she provided her email address and

ZIP code only for her subscription to Washington Examiner’s newsletter, Am. Compl. ¶ 14, and

though the newsletter “regularly included information about audio visual materials on Washington

Examiner’s website[,] [] hyperlinks to this video content[,]” and “embedded videos,” id. ¶ 15; see

also Pl.’s Opp’n at 18–20, nowhere does plaintiff allege “that she ever clicked [] a link” to the

video content included in the newsletter, or “watched any of” the embedded videos, Def.’s Mem.

at 16–17. Merely alleging that she “visited the Washington Examiner website and watched videos

on the site,” Am. Compl. ¶ 17, wholly separate from her newsletter subscription, breaks the link

between the service to which she was a subscriber and her accessing of audio-visual content, and

that is fatal to her standing as a VPPA “subscriber.” See Golden, 2023 WL 5434378, at *9

(plaintiff not a “subscriber” where “there is no connection between the emails from Today.com

for which [plaintiff] signed up and the website and mobile app through which the [complaint]

19
alleges she accessed the videos”); Carter, 2023 WL 3061858, at *6–7 (holding the “[c]omplaint

does not plausibly allege that plaintiffs acted as ‘subscribers’ when they viewed videos on the

hgtv.com” where “[p]laintiffs do not assert that they watched videos embedded in the newsletters

themselves”); Paramount Glob., 2023 WL 4611819, at *12 (similar).

Moreover, plaintiff fails to allege that her “status as newsletter subscriber[] was a condition

to accessing the [Washington Examiner] site’s videos, or that it enhanced or in any way affected

[her] viewing experience.” Lamb, 2023 WL 6318033, at *12 (quoting Carter, 2023 WL 3061858,

at *6); see also Ellis, 803 F.3d at 1253 (identifying “access to restricted content” as among the

“factors” indicative of “subscription[]” (citations omitted)). Again, assuming as true plaintiff’s

allegations that “video is central to Washington Examiner’s website and business” because “when

[plaintiff] visited pages on the site, ‘videos were generally displayed at the top of the page, above

the text of any article’” and “consumers must take affirmative steps to stop the video playback and

scroll the window downward if they prefer to read instead of watch,” Pl.’s Opp’n at 19–20 (quoting

Am. Compl. ¶ 17), does not help make a VPPA claim since these allegations are insufficient to

establish a link between what plaintiff subscribed to, i.e., the newsletter, and defendant’s audio-

visual content on its website. Indeed, plaintiff does not claim “that a newsletter subscription was

required to access those videos, functioned as a login, or gave newsletter subscribers extra benefits

as viewers.” Carter, 2023 WL 3061858, at *6. Rather, plaintiff “had the same access to videos on

the [] site as any other visitor” without a subscription. Salazar, 2023 WL 5016968, at *9 (citation

omitted); see also Kuzenski v. Uproxx LLC, No. 23-cv-945 (WLH) (AGR), 2023 WL 8251590, at

*5 (C.D. Cal. Nov. 27, 2023) (“[A] link to a video from Defendant’s Website does not create a

subscription relationship because any user can access the video on the Website”); Alex, 2023 WL

20
6294260, at *4 (“Plaintiffs are no different than other visitors to the [] Websites as they did not

gain access to exclusive content or receive extra benefits through their subscription”). 9

These allegations, without more, fall short of establishing that plaintiff’s subscription to

Washington Examiner’s email newsletter—consisting of written text along with “hyperlinks to []

video content” and “embedded videos,” Am. Compl. ¶ 15—made plaintiff a subscriber to

Washington Examiner’s “audio-visual goods or services,” Pl.’s Opp’n at 19 (citation omitted),

rather than merely a subscriber to its other, “predominantly written, not video, good or service”

that fall “outside the purview of the VPPA,” Heather v. Healthline Media, Inc., No. 22-cv-5059

(JD), 2023 WL 8788760, at *2 (N.D. Cal. Dec. 19, 2023); see, e.g., Tawam, 2023 WL 5599007,

at *5 (allegations that plaintiff “signed up for an email mailing list . . . and separately viewed

9
Plaintiff cites two cases for the proposition that plaintiff’s “Washington Examiner newsletter subscription
places her within the class of video-content consumers that the VPPA protects,” Pl.’s Opp’n at 20 (citing Harris v.
Pub. Broad. Serv., 662 F. Supp. 3d 1327, 1333 (N.D. Ga. 2023), and Goldstein v. Fandango Media, LLC, No. 22-cv-
80569, 2023 WL 3025111, at *4 (S.D. Fla. Mar. 7, 2023)), but these cases are factually distinguishable. In Harris,
the plaintiff “registered for a PBS account” and received “‘restricted content’ in the form of newsletters and email
updates,” Harris, 662 F. Supp. 3d at 1332, but, in contrast here, plaintiff “does not allege that she established an
account or that she took any action that gave her privileged access to [] the videos,” Def.’s Reply at 9. In Goldstein,
plaintiffs “had downloaded the Fandango App on their phones to purchase movie tickets,” but as plaintiff
acknowledges, see Pl.’s Opp’n at 20, no decision was rendered on “whether Plaintiffs [were] ‘consumers’ as defined
in the VPPA,” upon finding the factual record insufficient to resolve that issue, Goldstein, 2023 WL 3025111, at *4.
Though not cited by the parties, other decisions have found VPPA “subscriber” status adequately alleged
where plaintiffs subscribed to a defendant’s newsletter, consistent with plaintiff’s position urged here. See, e.g.,
Buechler v. Gannett Co., Inc., No. 22-cv-1464 (CFC), 2023 WL 6389447, at *2 (D. Del. Oct. 2, 2023) (rejecting
argument that “because Plaintiffs’ purported [newsletter] ‘subscription’ bears no connection to the video content
available on The Tennessean website, it does not fall within the VPPA’s ambit” (citation omitted)); Lebakken v.
WebMD, LLC, 640 F. Supp. 3d 1335, 1340 (N.D. Ga. 2022) (finding plaintiff a “subscriber” where she “exchanged
her email address to receive the WebMD e-newsletter and [] also created her own WebMD account”). The reasoning
of these decisions that a plaintiff’s subscription to one part of defendant’s business—a newsletter—may establish
plaintiff’s subscription to another business component, i.e., defendant’s website providing audio-visual content
generally accessible without a newsletter subscription, is difficult to square with the VPPA’s text requiring a
“consumer” to be a “subscriber of goods or services,” 18 U.S.C. § 2710(a)(1), obtained from a provider “engaged in
the business . . . of rental, sale, or delivery of … similar audio visual materials,” id. § 2710(a)(4) This text, as explained
supra, Part III.B, strongly indicates the necessity of “a factual nexus or relationship between the subscription provided
by the defendant and the defendant’s allegedly actionable video content,” Tawam, 2023 WL 5599007, at *5 (citations
omitted). Thus, by contrast to plaintiff here, in cases where plaintiffs subscribed to or created an account for access
to a defendant’s website, providing access to videos with Meta Pixel embedded, courts have found a connection
between the provision of plaintiffs’ PII and the “goods or services” plaintiffs consumed sufficient to support the
conclusion that the plaintiffs qualify as VPPA “subscribers.” See, e.g., Ghanaat v. Numerade Labs, Inc., No. 4:23-
cv--833 (YGR), 2023 WL 5738391, at *5 (N.D. Cal. Aug. 28, 2023); Jackson v. Fandom, Inc., No. 22-cv-4423 (JST),
2023 WL 4670285, at *3–4 (N.D. Cal. July 20, 2023).

21
videos on Defendant’s website” “are not sufficient to plausibly support the existence of a nexus

between the alleged subscription and the video content at issue”); Gardener, 2023 WL 4365901,

at *4–5 (similar).

By failing to link her newsletter subscription to the “viewing of [Washington Examiner’s]

video offerings,” Golden, 2023 WL 5434378, at *11, or to allege that the “subscription allowed []

access to the videos on the [Washington Examiner] site that any member of the public would not

otherwise have,” Salazar, 2023 WL 5016968, at *9 (citations omitted), plaintiff has alleged only

that she was a subscriber to Washington Examiner’s newsletter, not to “audio-visual goods or

services” provided by Washington Examiner, Pl.’s Opp’n at 19 (quoting Carter, 2023 WL

3061858, at *6). This is insufficient to make plaintiff a “‘consumer’ . . . of goods or services from

a video tape service provider” entitled to bring a cause of action under the VPPA. 18 U.S.C. §

2710(a)(1). 10

10
Plaintiff requests an opportunity to amend her complaint a second time in the event “any deficiencies” are
found. Pl.’s Opp’n at 24 n.6. To be sure, courts “should freely give leave when justice so requires,” FED. R. CIV. P.
15(a)(2), but “Rule 15(a)—even as liberally construed—applies only when the plaintiff actually has moved for leave
to amend the complaint; absent a motion, there is nothing to be freely given,” Schmidt v. United States, 749 F.3d 1064,
1069 (D.C. Cir. 2014) (quoting Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006)); see also Def.’s Reply at 14.
Without a motion for leave to amend, plaintiff’s VPPA claim must be dismissed. Defendant urges that dismissal with
prejudice is warranted, see Def.’s Reply at 15, because “plaintiff could not possibly cure the deficiency by alleging
new or additional facts,” United States ex rel. Shea v. Cellco P’ship, 863 F.3d 923, 936 (D.C. Cir. 2017) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (quotation marks omitted)), but that conclusion seems
premature on this record and therefore dismissal is without prejudice.

22
IV. CONCLUSION

For the reasons stated above, plaintiff’s Amended Complaint is dismissed, without

prejudice, for failure to state a claim.

An order consistent with this Memorandum Opinion will be filed contemporaneously.

Date: January 29, 2024

__________________________
BERYL A. HOWELL
United States District Judge

23