Plaintiff Sherhonda Golden alleged that NBC violated the VPPA by embedding a Facebook Pixel on its Today.com website, which transmitted her unique Facebook identification number and the specific videos she watched to Facebook without consent.
The district court dismissed Golden’s Fourth Amended Complaint, relying on the Second Circuit’s recent decision in Solomon v. Flipps Media, Inc., which held that factually similar allegations failed to state a VPPA claim.
In Solomon, the Second Circuit established an "ordinary person" test, determining that VPPA liability attaches only to information allowing an ordinary person to identify a consumer’s video-watching habits, not data that only a sophisticated technology company could use.
Golden did not dispute the binding nature of Solomon but argued that recent Supreme Court decisions—including Ames v. Ohio Department of Youth Services, CC/Devas (Mauritius) Ltd. v. Antrix Corp., and A. J. T. ex rel. A. T. v. Osseo Area Schools—overruled the circuit’s precedent.
The Second Circuit rejected this argument, noting that none of the cited Supreme Court cases created a conflict with Solomon or cast doubt on its reasoning.
The court explained that the cited Supreme Court decisions simply applied longstanding principles requiring courts to interpret statutes based on their text, which is the exact approach Solomon took.
Because Golden’s allegations were materially indistinguishable from those in Solomon, the panel affirmed the district court’s dismissal of her VPPA claim.