A surge of video privacy class actions targeting numerous businesses with expensive litigation has begun to decrease as plaintiffs and judges are dismissing claims en masse, according to a Bloomberg Law analysis of federal cases.
The rate of new cases seeking large amounts of money from companies for sharing an individual’s video-viewing history without consent reached its peak in September 2022, but has seen a general decline since then. This data was revealed by court docket information, with occasional spikes in monthly filings.
Federal class actions filed under the Video Privacy Protection Act increased at the beginning of 2022 as attorneys across the country attempted to hold businesses responsible for tracking online visitors’ video-watching habits. However, the number of cases has dropped significantly following companies’ efforts to prevent VPPA violation allegations and courts narrowing the scope of viable claims.
According to a consumer class action litigator at Akin Gump Strauss Hauer & Feld LLP, Marshall Baker, active firms in the plaintiffs’ class action bar initially saw success with the VPPA theory, leading to a rapid increase in the number of cases. However, the trend has since reversed, resulting in numerous dismissals.
Due to a defendant’s motion, at least 19 cases filed since the litigation wave began have been dismissed by a judge, while more than a dozen others have concluded with individual settlements before class certification. Despite the requirement for fact-specific analysis in these claims, nearly half of the VPPA suits that have concluded in the last three years have been voluntarily dismissed before the defendant filed a response or motion to dismiss the original complaint.
The privacy protections under the Video Privacy Protection Act were established in 1988, allowing private litigants to recover up to $2,500 per violation. The recent wave of complaints has resulted in multi-million dollar class action settlements with companies such as Sony Corp. and the Boston Globe, with allegations typically centering around associating identifiable information with video-watching habits and sharing that data without consent.
The plaintiffs’ bar has been the primary driver behind developing video privacy case law to address online tracking, but the high rate of dismissals and the volume of filings has led to concerns over the strategic approach of some VPPA cases.
The recent wave of VPPA litigation focuses on allegations of sharing users’ viewing history with social media and advertising companies, differing from the previous wave targeting streaming services for displaying users’ watch histories during in the mid-2010s. The ebb and flow of video privacy class-action filings demonstrates a strategy within certain segments of the plaintiffs’ bar to litigate statutes at a high frequency until viable cases dry up.
Companies that use video for marketing purposes may be more insulated from video privacy claims going forward, while those whose core business revolves around delivering video content face the greatest liability exposure. However, some ambiguities in the case law still exist, with appellate courts expected to weigh in on certain questions, providing clarity at an appellate level.