PBS sought leave Tuesday to file a notice of supplemental authority documenting the Southern District of New York’s dismissal Feb. 17 of a Video Privacy Protection Act complaint in Martin v. Meredith (docket 1:22-cv-04776), alleging the same VPPA claim plaintiff Jazmine Harris is asserting against PBS, said its motion (docket 1:22-cv-02456) in U.S. District Court for Northern Georgia in Atlanta. The plaintiff in Martin alleged Meredith violated the VPPA by placing the Meta pixel code on People.com webpages containing video content, it said. The plaintiff alleged that when visiting such a webpage, a user’s Facebook ID and the webpage URL containing the name of a video available on that webpage were transmitted to Meta via its pixel, which the plaintiff claimed was a disclosure of personally identifiable information (PII) under the VPPA for revealing that the user requested or obtained a video, it said. In dismissing the complaint, the Martin court said the alleged transmissions didn’t qualify as PII under the VPPA, it said. Even for webpages containing a video, sending the URL doesn’t identify a person as having requested or obtained the video on the page since the person may instead have merely reviewed an article on the page or opened the page and done nothing more, the Martin court said. The court “thus agreed with and adopted a ground for dismissal that PBS presents in its motion to dismiss” the Harris complaint, said the motion. As demonstrated in PBS’ motion to dismiss, the Harris allegations “support, at most, only the disclosure of a webpage containing both video and non-video content,” it said. “Harris thus fails to allege that the data allegedly transmitted to Meta shows a user requesting or obtaining a specific video from the PBS website, as required to state a claim under the VPPA,” it said. “For this reason, Martin supports the dismissal of the Harris complaint” against PBS, said the motion.

Defendant Apple filed motions Friday in two separate privacy class actions to transfer the cases to U.S. District Court for Northern California in San Jose, where the “substantially similar,” first-filed case, Libman v. Apple (docket 5:22-cv-07069) has been pending since November. The plaintiffs in both cases, Robinson v. Apple (docket 1:23-cv-00877) in U.S. District Court for Southern New York, and Kelly v. Apple (docket 5:23-cv-00314) in the Eastern District of Pennsylvania support the transfers, said the motion. All the class actions allege Apple illegally records and collects data on consumers’ mobile app activity even when the tracking feature is disabled through a device’s privacy settings (see 2302130043). Since Libman was filed, “at least four similar cases have been transferred to the Northern District of California from other districts,” said Friday’s motions. “Additionally, at least five other similar cases have been filed in the Northern District of California.” Transferring the two additional cases would “promote the interests of justice and enhance the convenience to witnesses, access to relevant documents and sources of proof, availability of process, and trial efficiency,” said the motions.

Plaintiff Michelle Harris-Shields dismissed without prejudice all claims against Entertainment Weekly publisher Dotdash Meredith in U.S. District Court for Southern New York in Manhattan, said a Wednesday filing (docket 1:23-cv-00851). Harris-Shields’ complaint alleged the EW.com website violated the Video Privacy Protection Act by disclosing subscribers’ personal viewing without their consent. A similar VPPA class action against iHeartMedia by the same law firms (see 2302020016), Shamis & Gentile and Edelsberg Law, (8:23-cv-00215), filed Jan. 31 in U.S. District Court for Middle Florida in Tampa remained open Friday.

An administrative motion Thursday asked the U.S. District Court for Northern California in San Jose to consider whether two privacy class actions against Apple should be related to the first case, Libman v. Apple (docket 5:22-cv-07069), filed Nov. 10. Lynch Carpenter law offices filed the motion and represents plaintiffs Dorothy Teixeira and Francis Barrott in the separate class actions (dockets 5:23-cv-00617 and 5:23-cv-00618) the law firm filed on their behalf Feb. 10 (see 2302130043). All three cases reside in the San Jose court but are assigned to three different judges. The claims in all three lawsuits “are based on Apple’s harvesting of vast troves of its customers’ user data from mobile devices without its customers’ knowledge or consent,” said the motion. “Both the Teixeira and Barrott actions involve the same causes of action and the same underlying allegations of misconduct as the Libman action,” it said. Litigating the cases separately “would create a significant risk of duplicative labor and expenses, as well as conflicting results,” it said. “Other similar cases are pending before other judges in this district and in other district courts which would meet the test for relatedness under Local Rule 3-12.” Lynch Carpenter counsel in the Teixeira and Barrott actions “has been in communication with defense counsel, as well as plaintiffs’ counsel in the other related actions, and is working collaboratively with such counsel to have all cases transferred and related to this action,” said the motion.

U.S. District Judge Lynn Winmill for Idaho in Coeur D’Alene scheduled a virtual hearing Tuesday at 10 a.m. MST on Kochava’s Oct. 28 motion to dismiss the FTC’s Aug. 29 privacy complaint for failure to state a claim, said a text-only docket entry notice Thursday (docket 2:22-cv-00377). The agency seeks a permanent injunction enjoining Kochava from acquiring consumers’ geolocation data and selling it in a format that allows entities to track their movements to and from sensitive locations (see 2212050061). Kochava filed a request for judicial notice last week using unflattering comments toward the agency from FTC Commissioner Christine Wilson on her plans to resign her post to support its motion to dismiss (see 2302160061).

The U.S. District Court for Southern California in San Diego shouldn’t dismiss plaintiff Cynthia Lepur’s complaint against student loan servicer Educational Credit Management Corp. (ECMC) based on the prohibition against claim splitting, said Lepur’s opposition Thursday (docket 3:23-cv-00014) to ECMC’s Feb. 1 motion to dismiss (see 2302020029). Lepur is also a named plaintiff in another pending class action lawsuit against the same defendant, Mahboob v. ECMC, it said. She agrees the two lawsuits at issue “arise from a common set of facts,” that ECMS allegedly recorded its phone conversations with consumers without their consent in violation of the California Invasion of Privacy Act, it said. But the court should decline to dismiss her action under the doctrine against claim-splitting due to “special circumstances,” it said. Lepur has “a meritorious claim,” but there exists a possibility that the Mahboob action may be dismissed as lead plaintiff Beheshta Mahboob “was delayed in her filing,” it said. “As such, the equities weigh in favor of staying the present action,” rather than dismissing it, pending a resolution of ECMC’s motion to dismiss in the Mahboob action, it said. If ECMC’s motion to dismiss is granted in Mahboob, “there will no longer be two separate actions and the rule against claim splitting will not apply,” it said.

Amazon records chats with customers through the customer service chat tool without their consent, in violation of the Wiretap Act and several California statutes, alleged a class action removed from California Superior Court to U.S. District Court for Eastern California in Sacramento (docket 2:23-cv-00133) Wednesday. Plaintiff Brian Heinz, a California resident, visited Amazon’s website from July through September on his cellular phone to inquire about shipping disputes about products he bought at Amazon.com, said the complaint. He wasn’t told Amazon was recording the conversations, the complaint said. But it's the company’s practice to record all communications that occur on its website, “use the recorded conversations, and also allow, aid, and abet a third party to intercept and eavesdrop on the conversations,” it alleged. Had Heinz known the conversations were being recorded, he would have “conducted himself differently." Amazon representatives didn’t inform him the chats were being recorded “until they were directly asked” and after the recording had been made, the complaint said. In addition to wiretapping, Heinz claims for California classes three counts of invasion of privacy and violation of the California Unfair Competition Law. The complaint seeks injunctive relief, statutory and punitive damages, and attorneys’ fees and legal costs.

A new product liability action Friday in U.S. District Court for Northern California in Oakland seeks to hold Instagram and TikTok responsible for “causing and contributing to the burgeoning mental health crisis” among children and teenagers in the U.S. Instagram and TikTok don't warn parents “about any of the myriad harms they know or should know their products are causing,” alleged plaintiff Elizabeth Mullen’s complaint (docket 4:23-cv-00600) on behalf of herself and her minor child “N.M.” It's “technologically feasible” for Instagram and TikTok to design social media products, features and settings “that substantially decrease both the incidence and magnitude of harm to ordinary consumers and minors,” it said. Mullen’s complaint also brought claims for “common law negligence” arising from the defendants’ “unreasonably dangerous social media products and their failure to warn of such dangers.” Her complaint was the latest in a rash of recent actions, including those brought by at least two school districts, seeking to hold social media substantially responsible for the mental health crisis among youthful users of the platforms (see 2301270067).

Cynthia Redd wants U.S. District Judge Elaine Bucklo for Northern Illinois in Chicago to remand her Illinois Biometric Information Privacy Act class action against Amazon Web Services to Cook County Circuit Court where it originated before AWS removed it Dec. 2 (see 2212050036), said her motion Friday (docket 1:22-cv-06779). Redd alleges Wonolo, an app-based job placement company, used AWS’ cloud-based software service, Rekognition, to verify the identities of Wonolo users who interacted with its app. “It is well established that where a plaintiff alleges only a statutory violation under Section 15(c), and no actual damages or particularized injury, she does not have Article III standing to pursue those claims in federal court,” said her motion. Redd alleges a procedural violation of Section 15(c), that AWS unlawfully profits from her and other Illinois Wonolo users’ biometric data, it said. Binding 7th Circuit precedent dictates that because Redd lacks Article III standing, the court lacks subject-matter jurisdiction over her Section 15(c) BIPA claims, “and they must be severed and remanded” to the Cook County court, it said.

Courts in California, Florida and Pennsylvania have handled most of the session replay code privacy claims since their rise in popularity in the past few years, said a Husch Blackwell analysis Wednesday. Florida courts have been "most critical" of these claims, repeatedly saying plaintiffs’ complaints failed to state a claim under the Florida state law "because the complaints alleged un-sanctioned recording of behavior and not the content of communications covered by the law," it said. "Where session replay technology is used to capture chat-based communications, however, Florida courts have allowed the claims to proceed beyond the pleading stage." California courts have been "less favorable" to session replay code defendants than Florida courts, said Husch Blackwell. The 9th U.S. Circuit Court of Appeals overturned a Northern District of California dismissal of a plaintiff’s California Invasion of Privacy Act claim after saying the plaintiff consented to the recording but did so only after using the website for some time, it said. The 9th Circuit concluded the California Supreme Court would interpret Section 631(a) of CIPA, California’s wiretapping statute, to require the prior consent of all parties to a communication. On remand, however, the case was again dismissed, this time under the statute of limitations. A new class action in San Diego is seeking to thwart Spirit Airlines from “wiretapping” the electronic communications of visitors to its website, in violation of the CIPA (see 2302080044).