Vizio Urges Judge to Dismiss Data Tracking Class Action Lawsuit

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Vizio Inc. 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.

The plaintiffs argue Vizio violates the federal Video Privacy Protection Act (VPPA) and the Electronic Communications Privacy Act (ECPA) by tracking everything users watch and selling their data to third party companies.

The plaintiffs also claim their personally identifiable information is exposed to these third parties.

In a brief filed last week, Vizio asserted that the VPPA and ECPA do not prohibit the collection of non-personal data and says that the plaintiffs’ opposition motion “reveals a fundamental and disturbing disregard for substantive law.”

“According to Plaintiffs, merely alleging a defendant engaged in conduct that plaintiffs believe to be ‘improper’ is enough, even if the law does not consider such conduct actionable,” Vizio argues. “This is not how the law works.”

Vizio claims that the VPPA and ECPA clearly delineate the type of conduct that is prohibited, and that these laws “simply do not apply to VIZIO and do not proscribe the collection of non-personal data alleged in the Plaintiffs’ Complaint.”

Vizio filed a motion to dismiss the data tracking class action lawsuit in September, arguing in part that it is not a “video tape service provider” as defined under the VPPA. The company also said that the plaintiffs failed to establish standing because they did not show they suffered “concrete” injuries.

In November, the plaintiffs challenged Vizio’s argument that they did not suffer “concrete” injuries, because Vizio profits from the sale of their “sensitive, private, and economically valuable information.” They claim that Vizio misrepresented its data-mining practices.

Last week’s motion by Vizio continues to challenge the plaintiffs’ assertion that they have suffered a “concrete” injury. The company asserts that the plaintiffs have merely alleged that their statutory rights were violated but they have not claimed a concrete injury as required for Article III standing. Vizio points to case law affirming that the loss of personally identifiable information does not create concrete harm that is sufficient to support Article III standing.

Vizio also takes issue with the plaintiffs’ argument that their smart TVs were defective and that their value was diminished because of Vizio’s data-mining practices. Vizio asserts that the alleged diminishment of value of the televisions is unsupported and does not show the plaintiffs suffered cognizable injury.

Further, Vizio is not accused of disclosing consumers’ personally identifiable information—it is only accused of disclosing a device identifier, which allegedly cannot be used to identify a person. Therefore, Vizio argues, the claim that the company has violated the VPPA must be dismissed.

About a year ago, consumers began filing data privacy class action lawsuits against Vizio, and they were subsequently grouped into multidistrict litigation. In April, a total of 20 Vizio class action lawsuits were centralized in California.

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 Data Privacy Class Action Lawsuit is In re: Vizio Inc. Consumer Privacy Litigation, Case No. 8:16-ml-02693, in the U.S. District Court for the Central District of California.

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

UPDATE 2: 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 3: 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 4: On Feb. 8, 2019, the Vizio smart TV class action settlement is now open. Click here to file a claim.