## Facts

- Consumers sued Vizio, alleging its “smart” televisions used software (including automatic content recognition) to collect detailed viewing histories.
- Plaintiffs alleged the data transmitted to Vizio included viewing content and timestamps plus identifiers and settings such as MAC address, IP address, zip code, and region/language settings.
- Plaintiffs alleged Vizio transmitted and monetized this information by providing it to third parties (e.g., advertisers/data brokers) for analytics and targeted advertising.
- Plaintiffs alleged disclosures and consent mechanisms did not clearly communicate the scope of collection and disclosure.
- Plaintiffs claimed economic harm, alleging they would not have purchased the televisions, or would have paid less, had they known of the tracking and monetization.
- The actions were consolidated in a multidistrict litigation in the Central District of California; the decision addressed Vizio’s motion to dismiss.

## Issues

1. Whether plaintiffs plausibly alleged Article III injury in fact (including price-premium and statutory privacy harms) traceable to Vizio’s practices.
2. Whether Vizio plausibly qualified as a “video tape service provider” and plaintiffs as “consumers” or “subscribers” under the Video Privacy Protection Act (VPPA).
3. Whether the alleged disclosure of viewing data combined with device/network identifiers plausibly constituted “personally identifiable information” under the VPPA.
4. Whether plaintiffs stated a claim under the federal Wiretap Act by plausibly alleging an interception of electronic communications contemporaneous with transmission.
5. Whether certain related state-law and fraud-based claims were pleaded with sufficient specificity.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The court held plaintiffs adequately alleged Article III standing based on an economic “price premium” theory tied to nondisclosure of data collection and related privacy harms.
- The court denied dismissal of the VPPA claims in substantial part, allowing them to proceed past the pleading stage.
- The court dismissed the federal Wiretap Act claims for failure to plausibly allege an interception “in transit.”
- The court dismissed certain additional claims (including some fraud-based theories) for pleading deficiencies, in some instances with leave to amend.

## Legal Principles

- A plaintiff can plead Article III standing by alleging economic injury from overpaying for a product whose material data-collection practices were not adequately disclosed.
- Statutory privacy claims may supply concrete injury at the pleading stage where the alleged invasion corresponds to the type of confidentiality interest the statute protects.
- For VPPA purposes, an entity involved in delivering video content through a smart-TV ecosystem can qualify as a “video tape service provider,” depending on the pleaded role of its services in video delivery.
- Detailed viewing information linked with persistent device/network identifiers and household/location data can plausibly constitute VPPA “personally identifiable information” at the pleading stage where it could permit identification of a specific person or household.
- A Wiretap Act claim requires plausible allegations of contemporaneous interception of communications during transmission; allegations consistent with access to stored data or other non-contemporaneous collection are insufficient.

## Conclusion

The court permitted the MDL to proceed on core VPPA and related privacy theories after finding standing based on alleged overpayment and privacy harms, while rejecting Wiretap Act claims for failure to plead interception during transmission and dismissing certain other claims for inadequate pleading.


In re Vizio, Inc. Consumer Privacy Litig., 238 F. Supp. 3d 1204 (C.D. Cal. 2017)