After providing background on the VPPA, this client alert will (1) provide a historical overview of the VPPA landscape; (2) detail recent cases and their impact on VPPA litigation; and (3) discuss possible developments and doctrinal trends in VPPA litigation in the near future.
Where We Were: Background on the VPPA and the New Wave of Litigation
The VPPA allows “consumers” to sue “video tape service providers” (VTSPs) for sharing their personally identifiable information (PII) without consent.[3] Congress passed the VPPA in 1988 after a journalist published Supreme Court nominee Robert Bork’s video rental history. After a lull, VPPA litigation has recently ballooned, with plaintiffs’ lawyers capitalizing on the VPPA’s at times inartful drafting to push the envelope far beyond the “video cassette tapes” that were at issue in Judge Bork’s case. Indeed, over the past decade, the VPPA has proven to be an attractive statute for the class action plaintiffs’ bar given its vague liability provisions coupled with the availability of statutory damages and attorneys’ fees.[4] In particular, enterprising plaintiffs’ counsel have attempted to apply the VPPA to streaming services and other digital technology, such as pixel and cookie-tracking technology.[5] And in the most recent wave of VPPA litigation, seemingly any company that offers an email newsletter and has any video on its website—from news outlets to cereal companies[6]—has found itself in the crosshairs of the plaintiffs’ bar. Plaintiffs in these cases typically claim that their identifying information, such as their email addresses or a social media IDs—plus the URLs of videos they watched—were transmitted to third parties in violation of the VPPA.
Where We Are: A Deepening Circuit Split on “Subscriber,” New Limits on “PII” and “VTSP,” and Hurdles at Class Certification
The “Subscriber” Circuit Split
To satisfy the VPPA’s definition of “consumer”[7], plaintiffs have often argued that they were “subscribers” because they signed up for email newsletters from the defendant.[8] Initially, there had been a growing trend among district courts to reject that argument.[9] In its place, courts began requiring “some factual nexus or relationship between the subscription provided by the defendant and the defendant’s allegedly actionable video content.”[10] If a plaintiff was not required to subscribe to a defendant’s newsletter in order to receive the video content at issue, then a sufficient “nexus” did not exist. The Second Circuit bucked that growing trend when it issued its decision in Salazar v. NBA.[11] Salazar v. NBA made it easier for plaintiffs to survive early dismissal on deficient “subscriber” allegations, but its conclusions were met with mixed results by other circuits, creating a split. The Seventh Circuit followed Salazar v. NBA,[12] while the Sixth and D.C. Circuits took a narrower view.[13]
1. Second and Seventh Circuits: Expansive Approach
In Salazar v. NBA, the plaintiff alleged that he signed up to receive an online email newsletter from the NBA and watched videos on NBA.com, which embedded pixel‑tracking technology in its coding.[14] The plaintiff alleged that the pixel transmitted his social media ID to a social media company in violation of the VPPA.[15] The district court dismissed the complaint, finding that the plaintiff was not a “subscriber” because he “d[id] not allege that the newsletters contained videos,” that “a user must log in to watch the video,” or that “the video content he accessed was exclusive to a subscribership.”[16]
But on October 15, 2024, the Second Circuit reversed.[17] First, the Second Circuit held that the NBA qualified as a VTSP under the VPPA, reasoning that a defendant need only “dabble in video rentals” to qualify as a VTSP under the VPPA.[18] Thus, both “a business dealing primarily in audiovisual materials (think Blockbuster) and one dealing in primarily non-audiovisual materials (think a general store that rents out a few movies)” would qualify as VTSPs under the statute.[19] Relatedly, the court reasoned that a plaintiff need not “specifically rent, purchase, or subscribe to audiovisual ‘goods or services’” to qualify as a “consumer” under the VPPA.[20] Rather, a plaintiff must only subscribe to a VTSP’s “goods or services—audiovisual or not.”[21] Second, the court held that plaintiff had adequately alleged that he was a “subscriber” under the VPPA. The court reasoned that a plaintiff need not spend money to qualify as a “subscriber.”[22] Instead, it is enough for a plaintiff to “allege that he provided the NBA with his personal information when he signed up for the newsletter.”[23]
Five months later, in Gardner, the Seventh Circuit followed the Second Circuit’s approach.[24] There, defendant MeTV operated a website that streamed old TV shows, and users could subscribe to MeTV’s newsletter to receive more personalized content after providing their email address and zip code.[25] Like the defendant in Salazar v. NBA, MeTV’s website allegedly contained pixel‑tracking technology, which transmitted the plaintiff’s unique social media ID to a social media company.[26] As in Salazar v. NBA, the Seventh Circuit took an expansive view of what could qualify as a VTSP.[27] Additionally, the Seventh Circuit concluded that the plaintiff qualified as a “subscriber” under the VPPA because he had provided personal information in order to sign up for the newsletter.[28] The Seventh Circuit reasoned that “furnish[ing] valuable data in exchange for benefits,” even if no money was exchanged, was enough to render an individual a “subscriber” under the statute.[29]
Together, Salazar v. NBA and Gardner curb a once‑forceful argument in two prominent jurisdictions for dismissing a plaintiff’s complaint early in litigation where plaintiffs did not adequately allege that they were a “subscriber” under the VPPA.
2. Sixth and D.C. Circuits: Narrower Reading
The Sixth and D.C. Circuits have taken a narrower approach on the subscriber issue, benefitting defendants in those jurisdictions.
In Salazar v. Paramount Global, the Sixth Circuit considered a “virtually indistinguishable complaint filed by the same plaintiff” in the Second Circuit’s Salazar v. NBA decision, yet reached the opposite result.[30] The Sixth Circuit held that an individual is a “consumer” under the VPPA “only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.’”[31] This rule, the court emphasized, avoided the pitfalls of the Second and Seventh Circuit’s approach, which the Sixth Circuit viewed as “scrutiniz[ing] [the VPPA] atomistically—chopping it up and giving each word the broadest possible meaning.”[32]
The D.C. Circuit followed suit in Pileggi.[33] The Pileggi court embraced the Sixth Circuit’s textual interpretation of the VPPA, holding that “the videos for which viewing history is disclosed must be the same video materials or services that the individual purchased, rented, or subscribed to.”[34] Applying this rule to the facts, the D.C. Circuit concluded that the plaintiff there was not a subscriber under the VPPA. Her claims “focus[ed] exclusively on the transmittal of information to [the social media company] about videos [she] watched on [the defendant’s website], separate and apart from the newsletter” she had subscribed to.[35] Because the plaintiff “did not rent, purchase or subscribe to the videos on the website,” she was not a “consumer” under the VPPA.[36]
Circuit Courts Limit Definitions of “PII” and “VTSP”
Despite the circuit split over the “consumer” requirement under the VPPA, other recent opinions from the Ninth and Second Circuit offer some clarity on two other key elements of a VPPA claim: that the defendant is a VTSP and that PII is transmitted.[37] Together, these decisions afford defenses to companies that are not in the business of offering prerecorded video materials or where the plaintiffs’ claims are predicated on pixel‑tracking technology.
1. Second Circuit: “PII” Requires Ordinary Identification
In Solomon v. Flipps Media, Inc., the Second Circuit held that information transmitted via pixel‑tracking technology did not qualify as “PII” under the statute, as the plaintiff had not alleged how an “ordinary person” could identify his information “with little or no extra effort.”[38] The Solomon court’s articulation of an “ordinary person” standard mirrored holdings from the Third and Ninth Circuits, but extended the reasoning of those cases to the context of pixel‑tracking technology.[39]
Indeed, nearly a decade before the Second Circuit decided Solomon, three circuit courts had considered what constitutes PII under the VPPA in quick succession.[40] From those decisions, two tests emerged: the “reasonable foreseeability” standard (adopted by the First Circuit) and the “ordinary person” standard (adopted by the Third and Ninth Circuits). Under the “reasonable foreseeability” standard, PII is “not limited to information that explicitly names a person,” and can also include information disclosed to third parties that is “reasonably and foreseeably likely to reveal which videos the plaintiff has obtained.”[41] Thus, digital identifiers associated with a plaintiff’s devices could qualify as PII so long as a sophisticated party could identify the plaintiff. By contrast, information does not qualify as PII under the “ordinary person” standard unless an “ordinary person” could identify a specific person’s video-watching habits.[42]
With Solomon, the Second Circuit became the third circuit and most recent circuit court to adopt the “ordinary person” standard instead of the “reasonable foreseeability” standard. And the Second Circuit reaffirmed the consequences of Solomon to pixel tracking VPPA claims in Hughes v. National Football League, emphasizing that: “Solomon effectively shut the door for Pixel-based VPPA claims.”[43] After these decisions, district courts within the Second Circuit have applied this standard narrowly, dismissing complaints based on pixel‑tracking technology because they fail to explain “how an ordinary person, with little or no extra effort,” could identify plaintiffs’ social media identification or video‑viewing history from a string of computer code.[44]
2. Ninth Circuit: Not Every Video Provider Is a “VTSP”
In Osheske, the Ninth Circuit held that a movie a theater does not qualify as a VTSP under the statute.[45] There, plaintiffs brought a VPPA claim against a movie theater, alleging the theater had transmitted their social media identification and the movies they purchased tickets to via pixel‑tracking technology.[46] The court reasoned that the phrase “rental, sale, or delivery” in the definition of VTSP “signif[ies] the transfer or conveyance of a good.”[47] Because the theater’s patrons could not “control” the movies they watch (e.g., by “rewind[ing]” or “paus[ing]” them), the Ninth Circuit concluded that movie theaters do not qualify as VTSPs.[48] Though Osheske concerned a movie theater, the Ninth Circuit’s emphasis on “transfer or conveyance” of audiovisual material could limit the VPPA’s applicability in other contexts, such as livestreaming, where viewers might similarly lack the ability to “control” their viewing experience.
Class Certification Hurdles
After Salazar v. NBA and Gardner, more VPPA class actions might survive early dismissal in some circuits. But even if these class actions do survive a motion to dismiss, plaintiffs will eventually have to wrestle with difficult class certification issues under Rule 23. The varied ways in which users interface with websites—logging into social media accounts, using different browsers, and clearing cookies at different rates—make certifying a class a tall task.
In re Hulu was an early case addressing class certification in the VPPA context.[49] There, the Northern District of California denied plaintiffs’ motion for class certification of their VPPA claims (without prejudice).[50] The court found that plaintiffs had not established an “ascertainable and definite class” because their theory of liability “depend[ed] on a number of variables (including whether the user remained logged into [their social media account], cleared cookies, or used ad‑blocking software).”[51] In addition, the court found that plaintiffs had not shown that common questions predominated over individualized ones.[52] The court emphasized that plaintiffs had not shown how the court could resolve individualized issues like “cookie clearing or blocking” on a class‑wide basis.[53]
For more than a decade after In re Hulu, no federal court ruled on class certification of VPPA claims (except for settlement purposes).[54] Recently, however, three district courts addressed whether VPAA class actions can be certified, with two denying and one granting certification:
- In Therrien, the District of Massachusetts denied certification because the proposed class wasn’t ascertainable.[55] The court held that plaintiffs’ method for identifying class members—using geolocation data—was administratively unworkable and risked due process violations.[56]
- In Martinez, the Southern District of Florida denied certification for lack of “numerosity,” even though nearly 36,000 users had viewed the defendant’s videos. [57] The court held that plaintiffs did not properly address uncertainties about whether these users had social media accounts, were logged in, or used browsers that could have blocked pixel tracking.[58] Because these issues were left to the court’s “arbitrary speculation,” the court denied class certification.[59]
- In Jancik, the Northern District of Georgia granted certification.[60] The Jancik court distinguished Martinez’s numerosity analysis, finding that the proposed class was broad enough and that “common sense” supported numerosity. [61] The court noted that the class was specifically defined to include only those whose information was actually transmitted, which avoided the commonality issues plaguing the proposed class in Martinez.[62]
In re Hulu and Therrien indicate that plaintiffs may run into difficulties with defining a class that is sufficiently ascertainable in the first instance. And Martinez provides a potential roadmap—Rule 23’s “numerosity” requirement—for defendants to introduce the many ways in which class members’ claims may differ under a “pixel” theory of liability. But Jancik suggests that a well‑defined class may be able to avoid these pitfalls.
Where We’re Going: Possible Future Developments in VPPA Litigation
While the Second Circuit’s decision in Salazar v. NBA created a new hurdle for defendants in the VPPA’s definition of “consumer,” there is a silver lining: thanks to Solomon, lower courts in the Second Circuit are tossing VPPA cases based on pixel tracking for failing to meet the statute’s definition of “PII.” Following the Second Circuit’s instruction, these courts are applying the “ordinary person” standard strictly and shutting down pixel‑based VPPA claims early.
Still, unless other circuits follow suit, Solomon won’t stem the tide of VPPA litigation everywhere.[63] This risk is especially acute in the Seventh Circuit, where “subscriber” status is interpreted so broadly that seemingly any commercial transaction where a consumer provides an email or other identifying information in exchange for a product or service—from “a Flintstones sweatshirt” to a “Bugs Bunny puzzle”—could make someone a “subscriber” under the statute.[64]
And because the Sixth and D.C. Circuit have articulated a narrower interpretation of “subscriber” under Salazar v. Paramount and Pileggi, that will only result in forum shopping until the circuit split has been resolved. With the still‑unsettled case law on class certification of VPPA claims, the potential for class‑wide damages only heightens that risk.
The Supreme Court may soon weigh in: certiorari petitions pending in both Salazar v. NBA and Solomon are asking that the High Court provide clarity on the subscriber and PII issues, respectively.[65] But whether or not the Supreme Court ultimately agrees to address these pending issues, the recent developments in VPPA litigation make one thing clear: “the VPPA is no dinosaur statute.”[66]
[1] Compare Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024), and Gardner v. Me-TV Nat’l Ltd. P’ship, 132 F.4th 1022 (7th Cir. 2025), with Pileggi v. Washington Newspaper Publ’g Co., LLC, No. 24-7022, 2025 WL 2319550 (D.C. Cir. Aug. 12, 2025), and Salazar v. Paramount Glob., 133 F.4th 642 (6th Cir. 2025).
[2] Compare Martinez v. D2C, LLC, No. 23‑21394‑CIV, 2024 WL 4367406 (S.D. Fla. Oct. 1, 2024), with Jancik v. WebMD LLC, No. 1:22-CV-644-TWT, 2025 WL 560705 (N.D. Ga. Feb. 20, 2025).
[3] 18 U.S.C. § 2710 et seq.
[4] 18 U.S.C. § 2710(c)(2).
[5] See, e.g., In re Hulu Priv. Litig., 86 F. Supp. 3d 1090 (N.D. Cal. 2015); Mollett v. Netflix, Inc., 795 F.3d 1062 (9th Cir. 2015).
[6] See Carroll v. Gen. Mills, Inc., No. CV231746DSFMRWX, 2023 WL 6373868 (C.D. Cal. Sept. 1, 2023).
[7] The VPPA defines a “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” See 18 U.S.C. § 2710(a)(1).
[8] See, e.g., Carter v. Scripps Networks, LLC, No. 22‑cv‑2031, 670 F. Supp. 3d 90, 99 (S.D.N.Y. Apr. 24, 2023).
[9] See, e.g., id.; Tawam v. Feld Ent. Inc., 684 F. Supp. 3d 1056, 1061 (S.D. Cal. 2023); Gardener v. MeTV, No. 22 CV 5963, 2023 WL 4365901, at *4 (N.D. Ill. July 6, 2023).
[10] See, e.g., Tawam, 684 F. Supp. 3d at 1061.
[11] Salazar, 118 F.4th 533.
[12] Gardner, 132 F.4th 1022.
[13] See Pileggi, 2025 WL 2319550; Salazar, 133 F.4th 642.
[14] Salazar v. Nat’l Basketball Ass’n, 685 F. Supp. 3d 232, 236–37 (S.D.N.Y. 2023).
[15] Id. at 237.
[16] Id. at 244–45.
[17] Salazar, 118 F.4th 533.
[18] Id. at 549.
[19] Id. at 548.
[20] Id. at 546 (emphasis in original).
[21] Id. at 549.
[22] Id. at 551.
[23] Id. at 552.
[24] Gardner, 132 F.4th 1022.
[25] Id. at 1023.
[26] Id. at 1024.
[27] Id. (“If plaintiffs had signed up and never watched a video, but had purchased a Flintstones sweatshirt or a Scooby Doo coffee mug or a Superman action figure or a Bugs Bunny puzzle (MeTV’s web site offers all four), then they would have purchased ‘goods’ from a ‘video tape service provider.’ Nothing in the Act says that the goods or services must be video tapes or streams.”).
[28] Id. (citing Salazar, 118 F.4th at 546–50).
[29] Id.
[30] Salazar, 133 F.4th at 651.
[31] Id. at 650–51.
[32] Id. at 650.
[33] See Pileggi, 2025 WL 2319550.
[34] Id. at *12.
[35] Id. at *8.
[36] Id.
[37] Solomon v. Flipps Media, Inc., 136 F.4th 41 (2d Cir. 2025); Osheske v. Silver Cinemas Acquisition Co., 132 F.4th 1110 (9th Cir. 2025).
[38] Solomon, 136 F.4th at 54 (citation omitted).
[39] Id.
[40] See Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (adopting the “reasonable foreseeability” standard); In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262 (3d Cir. 2016) (adopting the “ordinary person” standard); Eichenberger v. ESPN, Inc., 876 F.3d 979 (9th Cir. 2017) (same).
[41] See Solomon, 136 F.4th at 48 (citing Yershov, 820 F.3d at 486) (cleaned up).
[42] Id. at 50 (citing In re Nickelodeon, 827 F.3d at 267; Eichenberger, 876 F.3d at 985).
[43] Hughes v. Nat’l Football League, No. 24-2656, 2025 WL 1720295, at *2 (2d Cir. June 20, 2025).
[44] See, e.g., Order Granting Motion to Dismiss, Golden v. NBCUniversal Media, LLC, No. 1:22-cv-09858, ECF No. 70 (S.D.N.Y. Sept. 3, 2025) (applying Solomon to dismiss a pixel‑tracking claim for failing to meet VPPA’s definition of “PII”); Nixon v. Pond5, Inc., No. 1:24-CV-05823 (JLR), 2025 WL 2030303, at *5 (S.D.N.Y. July 21, 2025) (same).
[45] 132 F.4th at 1113.
[46] Id. at 1112.
[47] Id.
[48] Id.
[49] See In re Hulu Privacy Litigation, No. C 11-03764 LB, 2014 WL 2758598, at *24 (N.D. Cal. June 17, 2014).
[50] Id. at *14.
[51] Id.
[52] Id. at *21–*23.
[53] Id.
[54] See, e.g., In re TikTok, Inc., Consumer Priv. Litig., 617 F. Supp. 3d 904 (N.D. Ill. 2022) (certifying VPPA class action for settlement purposes only).
[55] Therrien v. Hearst Television, Inc., No. CV 23-10998-RGS, 2025 WL 509454, at *4 (D. Mass. Feb. 14, 2025).
[56] Id. at *4.
[57] Martinez, 2024 WL 436740, at *9.
[58] Id. at *6.
[59] Id. at *7.
[60] Jancik, 2025 WL 560705, at *10.
[61] Id. at *3.
[62] Id.
[63] For example, although the Ninth Circuit also has adopted the “ordinary person” standard for assessing PII under the VPPA, unlike district courts in the Second Circuit, district courts in the Ninth Circuit have recognized that VPPA claims based on pixel‑tracking technology still may survive a motion to dismiss. See, e.g., Heerde v. Learfield Commc’ns, LLC, 741 F. Supp. 3d 849, 857 (C.D. Cal. 2024) (“Most courts have found the Pixel discloses PII at the pleading stage, at least where plaintiffs also allege personal information existed on their [social media] page that could be used to readily identify them.”).
[64] Gardner, 132 F.4th at 1025.
[65] See Cert Pet., Nat’l Basketball Ass’n v. Salazar, No. 24‑994 (Mar. 14, 2025); Cert Pet., Solomon v. Flipps Media, Inc., No. 25‑228 (Aug. 21, 2025).
[66] Salazar, 118 F.4th at 553.
