Second Circuit Win: Pashman Stein Walder Hayden P.C. Defeats Putative Class Action Lawsuit Alleging Use of Facebook Pixel Violated VPPA
Pashman Stein Walder Hayden P.C. partners David N. Cinotti and Brendan M. Walsh recently secured a win at the U.S. Court of Appeals for the Second Circuit on behalf of Flipps Media, Inc. in a precedential decision. The case is one of many around the country addressing whether websites’ use of a common Facebook advertising tool, called Facebook Pixel, violates the federal Video Privacy Protection Act (“VPPA”). The plaintiff brought this putative class action on behalf of subscribers to Triller TV (formerly known as FITE TV), a digital-video streaming service focused on sports and entertainment programming, alleging that Triller TV’s use of Pixel caused information to be transmitted to Facebook disclosing the titles of videos that the class members viewed on the website and the Facebook ID of the person who viewed the videos. The plaintiff sought statutory damages of $2,500 per alleged violation. On May 1, 2025, the Second Circuit upheld the district court’s dismissal of the complaint and denial of leave to amend. Cinotti was quoted in a Law360 article discussing the case:
“We are pleased with the court’s decision, which resolves in the Second Circuit an important issue of federal privacy law,” said Cinotti.
The VPPA was enacted in 1988 in response to a reporter obtaining the list of video cassette tapes that Judge Robert Bork, who was nominated for a seat on the U.S. Supreme Court, and his family rented from a video store. The statute prohibits video tape service providers from knowingly disclosing “personally identifiable Information” (or “PII”) concerning their consumers. PII is not clearly defined in the statute. The U.S. Supreme Court has not addressed the meaning of PII in the statute. The Courts of Appeals for the First, Third, and Ninth Circuits have reached different conclusions. In the Flipps case, the Second Circuit adopted the Third/Ninth Circuit’s position and held that PII is limited to information that an ordinary person could use to identify a person. Because an ordinary person could not identify the viewer from the computer code in which the video titles and Facebook IDs were embedded, the plaintiff’s claim had to be dismissed as a matter of law.
The decision has important implications for Internet advertising. In the Second Circuit, the VPPA—a pre-Internet statute—does not prohibit websites from using common advertising technologies like Pixel, where the information allegedly disclosed or transmitted cannot be understood by an ordinary person.
A link to the court’s decision can be found here.
A link to the Law360 article can be found here.
The case was also featured in a New York Law Journal article.
Pashman Stein Walder Hayden P.C. is proud of the results it has achieved for clients. Of course, each legal matter is unique on many levels, and past successes are not a guarantee of results in any other pending or future matters.