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Locklear v. Dow Jones & Co., Inc.

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

January 23, 2015

TERRY LOCKLEAR, individually and on behalf of all others similarly situated, Plaintiff,
v.
DOW JONES & COMPANY, INC., Defendant

For Terry Locklear, individually and on behalf of all others similarly situated, Plaintiff: Benjamin H. Richman, James Dominick Larry, Jay Edelson, PRO HAC VICE, Rafey S. Balabanian, LEAD ATTORNEYS, Edelson P.C., Chicago, IL USA; Jennifer Auer Jordan, LEAD ATTORNEY, The Jordan Firm, LLC, Atlanta, GA USA.

For Dow Jones & Company, Inc., a Delaware corporation doing business as, Wall Street Journal Live, Defendant: Anthony Eliseuson, Kristen Rodriguez, Natalie Spears, LEAD ATTORNEYS, Dentons U.S. LLP-IL, Chicago, IL USA; Richard H. Sinkfield, Rogers & Hardin, LLP, Atlanta, GA USA.

Page 1313

ORDER

MARIC H. COHEN, United States District Judge.

This case arises under the Video Privacy Protection Act, 18 U.S.C. § 2710 (" VPPA" ). It is before the Court on Defendant's Motions to Dismiss. [Docs. 14, 15,21]. For the reasons stated below, Defendant's Motions to Dismiss Plaintiff's Class Action Complaint [Docs. 14, 15] are DENIED as moot. Defendant's Motion to Dismiss Plaintiff's Amended Class Action Complaint [Doc. 21] is GRANTED.

I. BACKGROUND

The following allegations are contained in Plaintiff's first amended complaint.[1] Defendant Dow Jones & Company, Inc. (" Dow Jones" ) is a Delaware corporation with its headquarters and principal place of business located in New York, New York. [Doc. 18 at ¶ 6]. Among other places, it conducts business throughout this District [id.]. Dow Jones is an international media company that publishes a variety of newspapers, newswires, and magazines [id. at ¶ 1]. It also offers media to consumers via a variety of other mediums, including the free, on-demand Wall Street Journal Live Channel (the " WSJ Channel" ) on Roku [id.]. Roku is a digital media-streaming device that delivers videos, news, games, and other content to consumers' televisions via the Internet [id. at ¶ 1 n.1]. In order to install the application called " channel" on Roku, users must visit the Roku Channel Store (Roku's proprietary online digital media platform) where they can download channels that allow them to view specific television shows or video clips on their devices [id. at ¶ 10].

Page 1314

Plaintiff, Terry Locklear, is a Georgia citizen. Starting November 2012, she downloaded and began using the WSJ Channel on her Roku media-streaming device to watch video clips and news stories [id. at ¶ 38]. Locklear did not consent, agree, or otherwise permit Dow Jones to disclose her personally identifiable information (" PII" ) to any third party analytics or advertising companies [id at ¶ 39]. Each time Plaintiff viewed a video clip using the WSJ Channel, Dow Jones disclosed her Roku device serial number and video viewing history to mDialog, an analytics and advertising company [id. at ¶ 41]. mDialog creates user identities by relying in part on information supplied by entities such as Roku [id. at ¶ ¶ 16, 26, 27]. So, once equipped with the demographic data linked to a Roku serial number, mDialog, by receiving information from such other entities, can attribute video records received from Dow Jones to an actual individual [id. at ¶ 27]. mDialog was able to identify Plaintiff and attribute her video records to an individualized profile in its databases [id. at ¶ 41].

Plaintiff now brings this putative class action on behalf of herself and others, whose Roku serial numbers were disclosed to mDialog. She alleges that Roku serial number and video viewing history constitute PII under the VPPA and that disclosure of such PII violated the VPPA. Plaintiff claims that she and the putative class members are entitled to an injunction and monetary compensation.

After Dow Jones moved to dismiss Plaintiff's original complaint [Docs. 14, 15], Plaintiff amended the complaint [Doc. 18], Dow Jones then moved to dismiss Plaintiff's first amended complaint [Doc. 21].

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a " short and plain statement of the claim showing that the pleader is entitled to relief." Although this pleading standard does not require " detailed factual allegations," mere labels and conclusions or " a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (stating " [n]or does a complaint suffice if it tenders 'naked assertions[s]' devoid of 'further factual enhancement'" ). In order to withstand a motion to dismiss, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face." ' Id (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face when the plaintiff pleads factual content necessary for the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Id.

When considering a Rule 12(b)(6) motion to dismiss, " all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." FindWhat Investor Group v. FindWhat.com,658 F.3d 1282, 1296 (11th Cir. 2011) (quoting Bryant v. Avado Brands, Inc.,187 F.3d 1271, 1273 n.1 (11th Cir. 1999)). However the court does not " accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. " Threadbare recitals of the elements ...


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