Duane Morris Takeaways: On April 3, 2025, in Salazar, et al. v. Paramount Global, d/b/a 247Sports, Case No. 23-5748, 2025 WL 1000139 (6th Cir. Apr. 3, 2025), the Sixth Circuit departed from two other federal circuits (i.e., the Second and Seventh Circuits) in its interpretation of "consumers" covered by the Video Privacy Protection Act ("VPPA"), and affirmed the district court's dismissal of a putative class action on the basis that only consumers of audio-visual related materials are covered by the protections of the Act. The Sixth Circuit's holding narrows the scope and reach of the statute and is a welcome reprieve for companies offering video content on their websites in connection with advertising technology ("adtech").
Background
In September 2022, Michael Salazar brought a putative class action against Paramount Global (i.e., the owner of 247Sports.com), claiming that the media company violated the VPPA because it installed Meta Pixel on its website. Salazar alleged that Meta Pixel, a form of adtech, tracked his and putative class members' video viewing history and disclosed it to Meta without his consent. He sought to represent a putative class of subscribers to 247Sports.com's newsletter which contained links to articles (that could contain videos), photographs, and other content.
Salazar, however, did not allege that he was a subscriber of audio visual materials as contemplated by the statute. 18 U.S.C. § 2710(a)(1)-(4). To the contrary, he alleged that he was a subscriber of 247Sports.com's newsletter, and that 247Sports.com separately provided audio visual materials to its customers. Salazar v. Paramount Global, 683 F.Supp. 3d 727, 744 (M.D. Tenn. 2023). But, the district court determined that Salazar's interpretation of the VPPA was "unavailing." Id. Indeed, "there [was] no allegation in the complaint that Plaintiff accessed audio visual content through the newsletter (or at all, for that matter). The newsletter [was] therefore not audio visual content, which necessarily means that Plaintiff [was] not a 'subscriber' under the VPPA." Id.
Salazar is no stranger to this legal issue. Last year, in a virtually identical case, the U.S. District Court for the Southern District of New York, dismissed a putative VPPA class action brought by Salazar on the basis that "signing up for an online newsletter did not make Salazar a VPPA 'subscriber.'" Salazar v. National Basketball Association, 118 F.4th 533, 536-37 (2d Cir. 2024). Salazar appealed that decision to the Second Circuit, which reversed the lower court, and held that the VPPA protects "consumers regardless of the particular goods or services rented, purchased, or subscribed to." Id. at 549. If blog readers would like to learn more about the Second Circuit's decision, a link to our post is included here.
Salazar appealed this case on the same grounds as his Second Circuit win and asked the Sixth Circuit to determine whether he was considered a "subscriber" and thus, a "consumer" under the VPPA.
The Sixth Circuit's Decision
The Sixth Circuit affirmed the district court's ruling and agreed that to be considered a "consumer" under the VPPA an individual must purchase goods or services of an audio-visual nature.
Judge John Nalbandian, writing for the Sixth Circuit, reasoned that the term "subscriber" must be viewed in its broader context, and in harmony with the other words in the statute such not to render associational words inconsistent or superfluous. Applying these canons, the Sixth Circuit explained that the words "goods and services" informed the meaning of the term "subscriber." By using the terms together, the statute was intended to encompass only audio-visual goods or services provided by a video tape service provider, as opposed to any and all goods and services, provided by that company. In other words, if a video tape service provider makes "hammers" or a "Flintstones sweatshirt or a Scooby Doo coffee mug," a consumer of such goods would not fall under the purview of the VPPA. Paramount Global, 2025 WL 100139, at *10.
In so holding, the Sixth Circuit departed from the Second and Seventh Circuits, including the near-identical lawsuit brought by Salazar himself, that found the phrase "goods or services" to encompass all goods and services that a provider places in the marketplace. Judge Rachel Bloomekatz, penning the dissent, reached the same conclusion. She opined that, under the majority's interpretation, a provider could "stitch[] together" non-video transactions to provide information about audio-visual transactions that could reveal a consumer's personal information. Id. At *12. The majority found such concerns unavailing and reasoned that the type of information available from the videos on Paramount Global's website was not inherent to the newsletter and was "accessible to anyone, even those without a newsletter subscription." Id. at *7.
As a result, the Sixth Circuit affirmed the district court's decision to dismiss the complaint without leave to amend.
Implications For Companies
Circuit splits in the federal courts are increasingly rare. It is nearly unprecedented, however, to have a situation where one litigant has created a federal circuit split with himself. Salazar could file one lawsuit in New York and his claims would go forward. But, if the exact same lawsuit was filed in Tennessee, then dismissal would be the proper remedy.
This patchwork system may be difficult for corporate counsel, tasked with ensuring their companies' adtech compliance, to follow. But, the Sixth Circuit's decision in Paramount Global is better than the alternative and could pave the way for other circuits to similarly limit the scope of the VPPA in their relevant jurisdictions.
In the meantime, however, corporate counsel for companies based in Kentucky, Michigan, Ohio, and Tennessee can rest a little easier knowing that – they can offer newsletters without worrying that adtech, installed solely on their websites – will somehow subject them to draconian VPPA liability.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
