The use of embedded videos for marketing purposes is a common practice, and application of the VPPA to state a cause of action within the context of our modern networked and web-based technology world would have far-reaching ramifications. In 1988, the VPPA was enacted by Congress “to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio-visual materials” (in response to publication of Robert Bork’s video rental history). A violation of VPPA must include the following three essential elements: 1) the defendant is a video tape service provider and 2) the defendant knowingly disclosed personally identifiable information of a consumer. Unlike other privacy laws, consumer consent to a disclosure under the VPPA can only be obtained through informed written consent, given in advance, separate and apart from any other obligation of the consumer. The VPPA provides for liquidated damages that could be substantial in the aggregate in a class action.
After full briefing and vigorous oral argument, Judge Vera agreed with Sidley that the plaintiff class did not allege violations of the VPPA through the complaint. Specifically, Judge Vera sided with Sidley and found that 1) the allegedly shared videos were only “peripheral to Defendant’s business” and that The Container Store is not a video tape service provider under the VPPA and 2) that Plaintiff did not plausibly allege that she is a “purchaser” of video services or a “consumer” under the VPPA. In its findings, the court cited to Ninth Circuit precedent regarding the necessity to the defendant’s business of delivering video content to trigger the VPPA. Further, the court agreed with Sidley that purchases unrelated to the actual video alleged does not trigger application of the VPPA. Plaintiff had sought to distinguish prior precedent with extensive allegations regarding the company’s use of and reliance upon embedded videos. The Container Store is a publicly traded retail chain company which offers storage and organization products and custom closets. Sidley’s briefing and oral advocacy was key in cutting through the volume of plaintiff’s allegations.
The Sidley team was led by partner Amy Lally (Century City), co-leader of the firm’s Consumer Class Actions practice, alongside partner Ian Ross (Miami). The team also included managing associate Sophie Green (Dallas).