BG partners Joshua Hammack and Michael Murphy secured an important and precedent-setting appellate victory for consumer privacy yesterday. The law at issue—the federal Video Privacy Protection Act—was intended to prevent certain companies from disclosing consumers’ video-watching preferences. And the law broadly protects “consumers,” which it defines to include “any renter[s], purchaser[s], or subscriber[s] of goods or services from a video tape service provider.” But, in August 2023, a district court in the Southern District of New York dismissed Mr. Salazar’s complaint alleging the NBA violated the VPPA by sharing his video-watching history with Facebook without his consent. It reasoned he was not a “consumer” because he subscribed only to the NBA’s online newsletter, and not to any of its audio-visual goods or services.
The Second Circuit flatly rejected this analysis. It held: “The phrase ‘goods or services’ in the VPPA is not cabined to audiovisual goods or services, but also reaches the NBA’s online newsletter.” Indeed, the term “consumer” “should be understood to encompass a renter, purchaser, or subscriber of any of the provider’s ‘goods or services’—audiovisual or not.” Because Mr. Salazar had alleged he subscribed to the newsletter, then, he was a statutory consumer entitled to the VPPA’s privacy protections.
Joshua Hammack, lead appellate counsel who argued the appeal, had this to say: “We’re pleased the Second Circuit smacked the NBA’s arguments off the backboard. The opinion boils down to this: The VPPA says what it says, and the district court’s attempt to rewrite it was improper.” Michael Murphy added: “Not much more to say than it’s a slam dunk for consumer privacy.”
Bailey Glasser’s litigators have been fighting to protect consumers in privacy law cases like this one. Our lawyers are nationally recognized for their work, including Mr. Murphy’s Band One Chambers & Partners ranking for his D.C. litigation practice, and Mr. Hammack has been recognized by Lawdragon as a 500 X – The Next Generation for his commercial litigation and appellate work, and as a Benchmark Litigation, U.S. 2024 Benchmark 40 & Under Litigator in Washington, D.C.
For more about the win, please visit this link.