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Austin-Spearman v. AMC Network Entertainment LLC

United States District Court, S.D. New York

April 7, 2015

ETHEL AUSTIN-SPEARMAN, individually and on behalf of all others similarly situated, Plaintiff, -
v.
- AMC NETWORK ENTERTAINMENT LLC, and AMC NETWORKS, INC., Defendants

Page 663

For Ethel Austin-Spearman, individually and on behalf of all others similarly situated, Plaintiff: Matthew Wurgaft, LEAD ATTORNEY, Kravis & File, P.C., East Rutherford, NJ; Benjamin Scott Thomassen, Edelson PC, Chicago, IL.

For AMC Network Entertainment LLC, a New York limited liability company, AMC Networks, Inc., a Delaware corporation, Defendants: Sandra Denise Hauser, LEAD ATTORNEY, Dentons U.S. LLP (NY), New York, NY; Kristen C. Rodriguez, SNR Denton U.S. LLP, Chicago, IL; Natalie J. Spears, Dentons U.S. LLP(Chicago), Chicago, IL.

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.

Plaintiff Ethel Austin-Spearman (" Austin-Spearman" ) commenced this action against defendants AMC Network Entertainment, LLC, and AMC Networks, Inc. (collectively, " AMC" ), alleging that AMC disclosed her personal information in violation of the Video Privacy Protection Act, 18 U.S.C. § 2710. AMC moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Following oral argument on this motion (and presumably anticipating this decision), Austin-Spearman requested leave to amend the complaint to add new factual allegations. The proposed amendment adds an additional piece of information but leaves intact the Court's analysis of the original complaint. For the reasons stated herein, AMC's motion is granted, but Austin-Spearman

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is granted to leave to amend.

BACKGROUND

AMC maintains a website that provides information about its television programming, on which it offers video clips and episodes of many of its television shows. Cmplt. ¶ 11. Web users may access the website's content either as a guest or by using an existing online account with participating cable television providers. Id. ¶ 12.

AMC's website also incorporates a software development kit (" SDK" ) provided by Facebook. Id. ¶ 23. This SDK allows companies to add Facebook-related features to their websites: for instance, sites can include a " Facebook Login," which lets visitors log into a website using their Facebook credentials, or a " Facebook Social Plugin," which lets visitors use Facebook's " Like," " Share," and " Comment" functions. Id. ¶ 15. To make use of this SDK, a company will add Facebook's source code to its website and then customize that code. Id. ¶ 17.

Notably, the Facebook SDK relies in part on cookies. Id. ¶ 18. In particular, through its " c_user" cookie, Facebook's code allegedly forces a user's web browser to look for the user's Facebook ID.[1] Meanwhile, if a person has chosen to remain logged into Facebook by checking the " keep me logged in" button on Facebook's homepage, this " c_user" cookie will continue to operate, regardless of what the user does with the web browser. Id. ¶ 20. If a person then visits a webpage (such as AMC's) that includes Facebook's SDK, Austin-Spearman asserts, " data about the user's web browsing may be silently transmitted back to Facebook." Id. ¶ 21. Specifically, Austin-Spearman alleges that when a user clicks on a hyperlink on AMC's webpage (for example, to view a video clip), Facebook's SDK " initiates a transmission to Facebook called '/plugins/like.php?' which contains values from the 'c_user' cookie and full URL of the video's webpage." Id. ¶ 24. " As a result of these data transmissions, Facebook receives a full record of: (i) the Facebook ID of the visitor browsing AMC's website, along with (ii) the exact titles of the audiovisual material (i.e. the video clips) that they viewed." Id. ¶ 26.

Austin-Spearman has been a member of Facebook since 2007 and remains logged in through her web browser. Id. ¶ 36. Since 2013, she has been visiting the AMC website to, among other things, watch video clips from AMC's The Walking Dead. Id. ¶ 37. She alleges that as she viewed these video clips, AMC disclosed her Facebook ID and the titles of the videos she viewed to Facebook. Id. ¶ 40.

Austin-Spearman filed the present complaint on August 22, 2014. The complaint, a putative class action, contains one cause of action under the Video Privacy Protection Act (" VPPA" ), 18 U.S.C. § 2710. The VPPA provides that " [a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d)," 18 U.S.C. § 2710(b)(1), and it specifies that " the term 'consumer' means any renter, purchaser, or subscriber of goods or services from a video tape service ...


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