Vizio Smart TV Users Fight Motion to Dismiss Data Tracking Class Action

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A group of consumers alleging that Vizio violates their privacy by illegally tracking what they watch is urging a federal court to reject the company’s motion to dismiss their class action lawsuit, saying the argument has a “catch-me-if-you-can quality.”

On Thursday, the plaintiffs challenged Vizio’s stand that plaintiffs in the consolidated class action lawsuit did not suffer “concrete” injuries and that Video Privacy Protection Act (VPPA), the Electronic Communications Privacy Act (ECPA) and the California Invasion of Privacy Act (CIPA), along with allegations of fraud and negligent misrepresentation aren’t applicable to the consumer electronics company.

“The law, it insists, is outmoded and can do nothing to stop the trap Vizio has laid for consumers … But the law is not so meek,” the plaintiffs argue.

While the laws at issue here were enacted in the late 1980s, prior to the era of data streaming and “big data analytics,” it does not excuse Vizio’s illegal practice in collecting and disclosing its customers video-watching habits without their consent and then profiting from the sale of this “sensitive, private, and economically valuable information,” the plaintiffs assert.

“These statutes require Vizio to obtain consumers’ consent before collecting or disclosing consumers’ personal information, and Vizio’s failure to secure that consent renders it liable for damages,” the plaintiffs argue, adding that Vizio’s “sharp practices are an outlier in the industry” because its “major competitors impose an opt-in requirement to invasive data tracking, whereas Vizio imposes a buried and misleading opt-out default option.”

Vizio filed its motion to dismiss in September, disputing the plaintiffs VPPA allegations on the basis that the company is not a “video tape service provider” as defined by the law. Specifically, the dismissal bid argued that Vizio users are not covered by the law since they did not rent, purchase, or subscribe to Vizio products or services.

Further, Vizio contends that the plaintiffs failed to successfully plead the company disclosed their “personally identifiable information,” since “anonymous device identifiers” cannot be considered PPI under the Video Privacy Protection Act.

But the plaintiffs shot back stating that Vizio is misinterpreting the statute. In particular, the plaintiffs assert that Vizio is “not merely a television manufacturer” and that the company indeed provides video streaming through its product offerings.

The consumers also claim they have a subscriber relationship with the company, particularly since Vizio collected location data that could reveal plaintiffs’ identity and their video watching history.

“Vizio disclosed plaintiffs’ personal video-watching habits without their consent — and did so for profit,” the plaintiffs said. “And Vizio only acquired plaintiffs’ money by misrepresenting and concealing its data-mining practices. These allegations demonstrate ‘concrete’ injuries in fact that suffice to give rise to Article III standing.”

In January, a federal judge approved a private mediator for the case in an attempt to resolve the claims brought by plaintiffs in at least 11 class action lawsuits alleging Vizio installed viewer tracking software in its smart TVs and then sold this information to third party advertisers without consumers’ knowledge or consent.

The U.S. Judicial Panel on Multidistrict Litigation (JPML) centralized these 11 class action lawsuits along with nine others in April in California federal court.

The plaintiffs are represented by Eric H. Gibbs, Andre Mura and Linda Lam of Girard Gibbs LLP and Joseph W. Cotchett and Adam J. Zapala of Cotchett Pitre & McCarthy LLP.

The Vizio Smart TV Data Privacy Class Action Lawsuit is In re: Vizio Inc. Consumer Privacy Litigation, MDL No. 2693, in the U.S. District Court for the Central District of California.

UPDATE: On Nov. 29, 2016, Vizio urged a judge to dismiss a class action lawsuit alleging it improperly collects and shares data about smart TV users’ habits without their consent, claiming the plaintiffs are misinterpreting federal privacy laws.

UPDATE 2: On July 25, 2017, a federal judge denied all of Vizio’s requests in its motion to dismiss and strike. 

UPDATE 3: On June 28, 2018, the preliminary agreement for the Vizio data privacy class action lawsuit settlement will be submitted to federal court in September.

UPDATE 4: On Oct. 4, 2018, smart TV owners reached a settlement worth $17 million in a class action lawsuit alleging Vizio secretly recorded and sold information about viewers’ watching habits.

UPDATE 5: On Feb. 8, 2019, the Vizio smart TV class action settlement is now open. Click here to file a claim.