U.S. Supreme Court Denies Certiorari, Preserving Second Circuit Victory for Pashman Stein Walder Hayden P.C. Client In Putative Class Action Under Federal Video Privacy Protection Act
Pashman Stein Walder Hayden attorneys Brendan M. Walsh, co-chair of the firm’s Litigation practice, and David N. Cinotti, partner in the firm’s Litigation practice, delivered a decisive victory for client Flipps Media, Inc. (d/b/a TrillerTV), a leading provider of live and recorded sports and entertainment streaming. The case, a matter of first impression, involved the use of internet advertising technology known as Meta (formerly Facebook) Pixel and the federal Video Privacy Protection Act (VPPA).
This putative class-action lawsuit, Detrina Solomon v. Flipps Media, Inc., was one of dozens filed nationwide alleging that the use of Meta Pixel violates the VPPA. Pixel is code deployed on a website that triggers communications to Meta’s servers about users’ actions on the site, enabling advertisers to serve targeted ads to Facebook users. The VPPA is a federal statute from 1988 that prohibits “video tape service providers” from disclosing “personally identifiable information” (PII) about their customers. The Pixel lawsuits allege that the website owners disclosed PII in violation of the VPPA when Pixel caused the titles of the videos that customers watched on the websites to be sent to Meta embedded in lines of computer code, together with users’ Facebook IDs that are contained in cookies set on the users’ internet browsers. The VPPA provides for damages of $2,500 per disclosure, creating the potential for crippling damages against website owners with millions of users.
In September 2023, the U.S. District Court for the Eastern District of New York granted the motion to dismiss that Pashman Stein filed on behalf of Flipps and dismissed the case without leave to amend. In May 2025, the U.S. Appeals Court for the Second Circuit affirmed the dismissal in a precedential decision, resolving for the first time in the circuit the standard for what information constitutes PII under the VPPA. The Second Circuit agreed with Pashman Stein that PII under the VPPA includes only information that an ordinary person could use to identify a customer of a video tape service provider. Because an ordinary person could not use the complex computer code at issue to identify the plaintiff, the court held that the complaint failed to state a claim. The court also agreed that the district court was not required to permit the plaintiff an opportunity to amend her complaint. A later panel of the Second Circuit recognized that the Solomon decision effectively ends VPPA litigation over the use of Pixel in the Second Circuit.
After the Second Circuit denied plaintiff’s petition for rehearing en banc, the plaintiff filed a petition for certiorari in the U.S. Supreme Court. Pashman Stein partnered with Jones Day, leveraging its renowned U.S. Supreme Court practice, to oppose the petition. On December 8, 2025, the U.S. Supreme Court denied certiorari, ending the case and preserving Flipps’s Second Circuit victory.
“This victory underscores our ability to navigate complex privacy issues and challenging questions of statutory construction under federal and state law,” said Walsh. “The case highlights the importance of understanding how emerging technologies intersect with longstanding privacy laws. We’re proud to have helped secure a result that not only protects our client but also provides clarity for businesses navigating these complex issues.”
“The results in this case showcase one of our firm’s real strengths: the ability to address difficult legal issues of first impression at a level on par with large, international law firms,” added Cinotti.
Read the Law360 article on the U.S. Supreme Court decision here.
Read Law360 article on the Second Circuit’s denial of an en banc hearing here.
Read the Law360 article on the Second Circuit’s May 2025 decision here.
A link to the Second Circuit’s decision can be found here
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.