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Ellis v. Cartoon Network, Inc.

United States District Court, N.D. Georgia, Atlanta Division

October 8, 2014

MARK ELLIS individually and on behalf of all others similarly situated, Plaintiff,
THE CARTOON NETWORK, INC. a Delaware corporation, Defendant.


THOMAS W. THRASH, Jr., District Judge.

This case arises under the Video Privacy Protection Act ("VPPA"). It is before the Court on the Defendant's Motions to Dismiss [Docs. 20, 26]. For the reasons stated below, the Defendant's Motion to Dismiss Plaintiff's Class Action Complaint [Doc. 20] is DENIED as moot. The Defendant's Motion to Dismiss Plaintiff's Amended Class Action Complaint [Doc. 26] is GRANTED.

I. Background

The Defendant The Cartoon Network, Inc., is a Delaware corporation, with its principal place of business in Atlanta, Georgia.[1] It produces mostly animated television programs.[2] It also offers video content to consumers through its mobile software application, the Cartoon Network App (the "CN App").[3] The CN App runs on mobile devices, including smartphones with Android operating systems.[4] To use the CN App, users must visit the Google Play Store, download the CN App, and then install it.[5]

The Plaintiff Mark Ellis is a North Carolina citizen.[6] In early 2013, Ellis downloaded the CN App and began using it to watch video clips on his Android device.[7] Ellis never consented to have any information released to third parties.[8] Non-party Bango is a data analytics company based in the United Kingdom.[9] Bango specializes in tracking individual user behaviors across websites and mobile applications.[10]

Each time a consumer, like the Plaintiff, accesses the CN App, a complete record of the user's video history, along with the user's Android ID, is transmitted to Bango.[11] Bango additionally collects a wide variety of information about consumers from other sources.[12] Once Bango received the Android IDs through the CN App, it was able to reverse engineer the consumers' identities using the information previously collected from other sources.[13] The Plaintiff now brings this putative class action on behalf of himself and others whose Android IDs were disclosed to Bango.[14] He alleges that the Android IDs constitute personally identifiable information under the VPPA. He alleges that disclosure of his Android ID was a violation of that statute entitling him and the putative class to an injunction and monetary compensation.

II. Legal Standard

A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief.[15] A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely."[16] In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff.[17] Generally, notice pleading is all that is required for a valid complaint.[18] Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests.[19]

III. Discussion

A. Standing

The Defendant asserts that the Plaintiff has not suffered an injury in fact and therefore lacks standing to sue. Standing is the threshold question in every federal case.[20] It requires the plaintiff to show an injury, that the injury was caused by the defendant's conduct, and that a favorable decision from the court will be likely to redress the injury.[21] Here, the Defendant has challenged only the first requirement - the injury. The Supreme Court has stated that "[t]he actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing....'"[22] Invasion of such statutorily created rights creates standing, even if no injury would have existed without the statute.[23]

The Plaintiff here alleges a violation of the VPPA, which expressly grants a right to relief. Specifically, the VPPA states: "Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court."[24] Congress's use of the word "aggrieved" indicates its intent to allow for broad standing.[25] Here, therefore, because the Plaintiff is alleging a violation of the VPPA, he alleges an injury. This Court will therefore consider whether the Plaintiff states a claim for a substantive violation of the VPPA.

B. The VPPA Claim

1. The Plaintiff is a "Subscriber" and ...

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