Sutton v. TED Foundation Inc.

TED Website Subscribers Not 'Consumers' Under Video Privacy Protection Act

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OPINION AND ORDER Plaintiffs bring this putative class action alleging that Defendant TED Foundation, Inc. (“TED” or “Defendant”) violated the Video Privacy Protection Act (“VPPA”), 18 U.S.C. §2710. See generally Compl., ECF No. 1. Defendant moves to dismiss the Complaint in its entirety, arguing that Plaintiffs do not have standing under Rule 12(b)(1) and that the Complaint fails to state a claim under Rule 12(b)(6).¹ See generally Def.’s Mem. of L. in Supp. of Mot. to Dismiss (“Def.’s Br.”), ECF No. 20. For the reasons discussed herein, Defendant’s Rule 12(b)(1) motion is DENIED, but its Rule 12(b)(6) motion is GRANTED. However, the Court also GRANTS Plaintiffs leave to amend. BACKGROUND A. Factual Background “In reviewing a facial attack to the court’s jurisdiction, we draw all facts — which we assume to be true unless contradicted by more specific allegations or documentary evidence — from the complaint and from the exhibits attached thereto.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).² “In assessing the plausibility of the claim, [the Court] must accept factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Peretti v. Authentic Brands Grp. LLC, 33 F.4th 131, 137 (2d Cir. 2022). Defendant TED Foundation, Inc. is a non-profit organization that produces pre-recorded videos accessible to the public via browser on its website TED.com and via the TED application on Android and Apple mobile devices. Compl. 4. TED allows users to create accounts, which “are free of charge,” to “receive personalized recommendations, sync videos across all of a user’s devices, download videos to watch offline, and add talks to [the user's] list to watch later, among other benefits.” Id.

12-13. To create an account, TED users must provide their names and email addresses. Id. 12. TED shares users’ personally identifiable information (names, email addresses, videos viewed, and user IDs) with third-party service providers Leanplum, Mixpanel, and OpenWeb. See id.

Sutton v. TED Foundation Inc.

TED Website Subscribers Not 'Consumers' Under Video Privacy Protection Act

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