Last month, a defendant won dismissal of a putative VPPA class action when the court concluded that the defendant’s use of online videos was not central to the defendant’s business, and the VPPA therefore did not apply.  Another court has now reached the same result.  See Cantu v. Tapestry, Inc., 3:22-cv-01974 (S.D. Cal. July 10, 2023).  This trend highlights the limits of the VPPA’s reach and provides forceful grounds for future motions to dismiss and demand letter responses.

In Cantu, plaintiff’s complaint contained by now familiar allegations: plaintiff’s video-viewing activity had been shared with a third party, in purported violation of the VPPA, via pixel code allegedly installed on defendant’s website.

Cantu turned on the VPPA’s “video tape service provider” element.  The VPPA applies only to “video tape service provider[s],” defined as “any person engaged in the business . . . of rental sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”  Plaintiff claimed that defendant was “in the business” of video delivery because defendant’s “business model monetizes the occasions its customers watch videos.”  But this was insufficient, the court held.  The court concluded that nothing supported the inference that defendant’s “enterprise is ‘significantly tailored’ to achieving” video-viewing monetization.  To the contrary, the court found that “the ‘monetization’ of ‘instances’ plausibly suggests [defendant] ‘passively’ or ‘peripherally’ engages in the delivery of video content.”  That, the court held, was “not enough to garner liability under the VPPA.”  The court did allow plaintiff leave to amend to attempt to show “Defendant’s business model is ‘significantly tailored’ to the delivery of video content, rather than ‘peripherally’ or ‘passively’ involved in such an exercise.”

By concluding that the VPPA does not cover companies that use online videos in a manner only peripheral to their core business, Cantu signals growing acceptance of a strong threshold defense to future VPPA claims.

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Photo of Daniel Rios Daniel Rios

Daniel Rios is a commercial litigator with a wide-ranging complex litigation practice representing clients in class actions and other high-stakes disputes. He handles a variety of matters, including consumer protection, business tort, breach of contract, and other commercial claims.

Photo of Eric Bosset Eric Bosset

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions…

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.