Plaintiffs Ask 9th Circ. to Hear ESPN App Privacy Class Action

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Late last week, a class of ESPN app users filed a notice of appeal to the 9th U.S. Circuit Court of Appeals in the class action lawsuit accusing sports network ESPN Inc. of illegally disclosing the private information of those who used its device app to Adobe Systems Inc.

Lead plaintiff Chad Eichenberger filed the class action lawsuit in Washington federal court in 2014. In it, he alleges that ESPN had violated the Video Privacy Protection Act when it routed the personal information of its WatchESPN app to Adobe Analytics through their Roku streaming media device.

Eichenberger alleges that when WatchESPN users utilized a Roku device, ESPN illegally disclosed the Roku device’s serial number and video viewing history to Adobe Analytics. The plaintiff alleges further that Adobe Analytics then matched the anonymous info with personal identifiers from other associated sources to “compile to form comprehensive profiles about a person’s entire digital life,” according to the ESPN class action lawsuit. The complaint also alleges that Adobe then sold this information to other data companies.

U.S District Judge Thomas Zilly dismissed the ESPN class action lawsuit with no opportunity to amend in May of this year. Judge Zilly ruled that Eichenberger had failed to state a claim under the law in his class action lawsuit because the information did not identify individual users.

ESPN had argued in its motion to dismiss the Washington class action lawsuit that serial numbers are considered anonymous information under the Video Privacy Protection Act and ESPN could not be held responsible for what Adobe did with those numbers once they received them from ESPN. ESPN also argued that there was no evidence that Adobe had combined serial number information with users’ private information as the plaintiff alleged in the class action lawsuit.

In his order dismissing the ESPN class action lawsuit, Judge Zilly agreed with ESPN’s arguments. Judge Zilly pointed out that an increasing number of courts have concluded that personally identifiable information, as defined under the Video Privacy Protection Act, pertains to information that specifically identifies an individual and does not include anonymous identification numbers or information.

Judge Zilly also noted that that this ESPN class action lawsuit presented a set of allegations nearly identical to a case against Dow Jones & Co. Inc. over its Roku channel app and that the Dow Jones & Co. class action was also dismissed by a Georgia federal judge earlier this year.

Similar class action claims under the Video Privacy Protection Act were not successful in a recent action against Hulu LLC. A class action lawsuit had accused Hulu, an online TV streaming video service, of disclosing personally identifiable information to Facebook Inc., In that case, the judge dismissed the case because Hulu had not known it was disclosing that information.

Eichenberger is represented by Jay Edelson, Benjamin H. Richman, J. Dominick Larry and Rafey S. Balabanian of Edelson PC, and Clifford A. Cantor of Law Offices of Clifford A. Cantor PC.

The WatchESPN Privacy Class Action Lawsuit is Chad Eichenberger v. ESPN Inc., Case No. 2:14-cv-00463, in the U.S. District Court for the Western District of Washington.