The Video Privacy Protection Act (VPPA or the Act); Standing; Whether plaintiff established himself as a “consumer” under the Act; § 2710(a)(1); Leave to amend

The court held that the district court properly dismissed plaintiff-Salazar’s claim for damages under the VPPA for failure to state a claim where he failed to establish that he was a “consumer” based on his subscription to an e-newsletter. It concluded “that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.” Salazar signed up for a newsletter from defendant-Paramount Global, “doing business as 247Sports.com, a website that provides news coverage of college sports.” He claimed that while he was logged on to Facebook, he watched videos on the site. He alleged that Paramount “installed Facebook’s tracking Pixel on 247Sports.com” and that this “enabled Paramount to track and disclose to Facebook Salazar’s 247Sports.com video viewing history, linked to his Facebook ID without” his consent. He then brought this class-action suit under the VPPA. The district court dismissed the suit under Rule 12(b)(6) on the basis that he failed to establish he was a “consumer” under the Act. On appeal, the court first noted that defendant abandoned its challenge to Salazar’s standing to bring his claim, but it considered the issue because it has “an independent obligation to confirm the plaintiff’s standing before exercising” jurisdiction. It concluded that the “district court correctly found that Salazar has standing.” It then turned to whether he had stated a VPPA claim. To be a “consumer” under the Act, he must be “a ‘subscriber of goods or services from a video tape service provider.’” Salazar contended “that the ‘broad statutory phrase “goods or services” plainly includes Paramount’s online newsletter.’” But the court found that “there is an association between the terms ‘goods or services’ and ‘audio visual materials.’ So viewing the provision as a whole reveals ‘a more targeted reading’ than the one Salazar proposes.” It concluded that the “full definition of ‘consumer’ in the statute does not encompass consumers of all ‘goods or services’ imaginable, but only those ‘from a video tape service provider.’” The court noted that two other circuits disagree with this interpretation. Applying its interpretation, it determined that “Salazar did not plausibly allege that the newsletter itself was an ‘audio-visual material.’” It affirmed the district court’s dismissal of the suit and its denial of leave to amend, noting that Salazar requested leave to do so “only in a single cursory footnote at the end of his response to Paramount’s motion to dismiss[,]” and did not explain how an amended complaint would resolve the problems with the first.