Plaintiffs class action lawyers have latched onto privacy litigation as their next big meal ticket. Over the past year, companies have faced a new barrage of lawsuits under the federal Video Privacy Protection Act, (VPPA) and state and federal wiretap laws. The VPPA was originally enacted in the 1980s to prevent videotape rental stores from disclosing customers’ rental records without their consent. While your neighborhood Blockbuster may be extinct (unless of course you live in Bend), the VPPA’s offer of up to $2,500 per violation in addition to costs and attorneys fees for successful litigants has given it new life in this digital age. Over 100 VPPA lawsuits have been filed in roughly the last year alone alleging that companies’ use of Meta’s “Pixel” to track website users’ video history and share that information with advertisers is a violation of the VPPA. Last month, one such accused company agreed to a $2.6 million class action settlement.

Similarly, under the state and federal wiretap laws, plaintiffs class action lawyers have alleged that companies’ disclosure of customers’ chats to outside software analytics companies violates state and federal wiretapping and eavesdropping statutes. However, based on recent federal district court victories by defendants in getting many such claims dismissed or moved into arbitration, it is clear that plaintiffs will have to do more than simply allege that either their video watch history or chat history was disclosed to win the day. When the courts move beyond companies’ procedural defenses and address the merits of the plaintiffs’ claims, plaintiffs will still need to convince the courts to adapt decades old statutes to an evolving online marketplace.

Key Takeaways

• Companies that conspicuously display mandatory arbitration policies and class waivers will be more successful either compelling arbitration or dismissing class actions of such claims.
• Companies must be engaged specifically in the business of providing audio visual materials to be covered by the VPPA.
• State laws will differ on who consents and who is participating as a direct party for the purposes of wiretapping and eavesdropping violations.

Companies facing similar claims should consider responding proactively and reaching out to our team at Miller Nash for more help.

Editor's Note: Michael Zangl, a 2023 Miller Nash summer associate, contributed to this blog post.