Vizio Fails to Dodge Consolidated Data Collection Class Action Lawsuit

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Following a federal judge’s denial, Vizio will continue to face consolidated civil claims over its practice of recording and selling information about its smart TV customers’ viewing history.

On Tuesday, U.S. District Judge Josephine L. Staton denied all of defendant Vizio Inc.’s requests in its motion to dismiss and strike. Plaintiffs in this consolidated Vizio class action lawsuit say the company uses its smart TVs to collect information about their viewing history, then sells that information to third parties, all without the plaintiffs’ knowledge or consent.

In Vizio’s motion to dismiss and strike, the company  argued that the plaintiffs’ request for injunctive relief, which would bar Vizio from continuing the data collection practices, is mooted by the terms of a federal consent decree that Vizio recently entered into with the U.S. Federal Trade Commission.

That consent decree arose out of a separate enforcement action brought by the FTC over essentially the same allegations of improper data collection and sharing. In addition to imposing $2.2 million in penalties, the consent decree bars Vizio from collecting viewing data unless it first discloses certain details about the data collection, then gets the viewer’s express affirmative consent.

Based on those terms, the company argued that the plaintiffs are in no danger of having any more of their viewing data collected. Judge Staton disagreed, however. The judge said that the mere existence of the consent decree does not make it “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

Vizio also asked the court to dismiss the plaintiffs’ claims under the federal Wiretap Act. The company argued that its data collection practices didn’t intercept the “content” of the viewers’ electronic communications – just certain data that is merely ancillary to the programming being watched.

Plaintiffs, however, allege that Vizio’s software takes actual samples of the programming being viewed. Judge Staton determined that allegation is sufficient to raise a claim of intercepting content under the Wiretap Act.

The judge also supported the plaintiffs’ new claims alleging Vizio collects data from several other kinds of devices like apps and smartphones, not just smart TVs. While Vizio argued that these allegations were vague and nonspecific, the judge found they were a permissible expansion upon allegations that had already passed judicial muster following a previous motion to dismiss.

Finally, Vizio moved to strike the plaintiffs’ proposed Class definition as overbroad, arguing that some proposed Class Members would be excluded by mandatory arbitration agreements that Vizio imposed on its smart TV purchasers starting in 2015 and 2016. Judge Staton disregarded that argument, noting that Vizio could not support its motion to strike based solely on the contents of the pleading under attack, as required by court rules.

This consolidated action originated as 20 separate Vizio class action lawsuits, all raising essentially similar claims. Plaintiffs claim that Vizio and its partner company Cognitive Media Networks Inc. hid tracking software in Vizio smart TVs that records viewing data and transmits it back to Cognitive Media Networks.

The separate Vizio class action lawsuits were consolidated in April 2016 and centralized in a federal court in California.

The plaintiffs are represented by Eric H. Gibbs, Andre Mura and Linda Lam of Girard Gibbs LLP and Joseph W. Cotchett, Adam J. Zapala and Gwendolyn R. Giblin 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 June 28, 2018, the preliminary agreement for the Vizio data privacy class action lawsuit settlement will be submitted to federal court in September.

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