A Central District of California court recently dismissed a putative privacy class action after determining that the movie theater defendants were not Video Tape Service Providers as defined by the Video Privacy Protection Act (“VPPA”).  See Walsh v. California Cinema Investments LLC, 2024 WL 3593569 (C.D. Cal. July 29, 2024).  Two other California federal courts recently have reached similar conclusions, and appeals of those rulings are currently pending before the Ninth Circuit.  See Garza v. Alamo Intermediate II Holdings, LLC, 2024 WL 1171737, at *1 (N.D. Cal. Mar. 19, 2024); Osheske v. Silver Cinemas Acquisition Co., 700 F. Supp. 3d 921 (C.D. Cal. 2023).

In Walsh, the Plaintiff contended that California Cinema and USA Cinema—two movie theater chains—violated the VPPA and California Code section 1799.3 by allegedly disclosing his personally identifiable information through a third-party pixel technology installed on their websites.  2024 WL 3593569, at *2.  The VPPA applies to certain disclosures made by a “Video Tape Service Provider,” which the statute defines as “any person engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”  18 U.S.C. § 2710(a)(4).  Plaintiff argued that the movie theater qualified as a Video Tape Service Provider because it purportedly “delivered” audio visual materials through physical movie theaters, “rented” audio visual materials through physical movie theaters, and “delivered” audio visual materials by posting movie trailers on its website.  The court disagreed.

The court first ruled that cinemas do not “deliver” videos because they “do not give their customers a possessory interest in the movies they show.”  Id. at *3.  And the court determined that, for this same reason, movie theaters do not “rent” videos by displaying them.

The court also rejected that the cinema “delivered” audio visual materials by displaying movie trailers on its website.  It determined that the mere presence of trailers did not establish that the cinemas are “delivering audio visual materials to a degree that would be in the business of doing so,” and the complaint alleged no other facts to support a different inference.  Id. at *5.  The court wrote that “it seems more likely that these trailers merely serve to promote Defendants’ actual business as a movie theater.”  Id.  The court also dismissed Plaintiff’s Section 1799.3 claim after similarly concluding that the defendants did not “provid[e] video record sales or rental services.”  

Photo of Marianne Spencer Marianne Spencer

Marianne Spencer is an associate in the firm’s Washington, DC office, where her practice focuses on class actions and complex civil litigation. She has defended clients in the financial services, sports, pharmaceutical, and technology industries against class actions in state and federal courts…

Marianne Spencer is an associate in the firm’s Washington, DC office, where her practice focuses on class actions and complex civil litigation. She has defended clients in the financial services, sports, pharmaceutical, and technology industries against class actions in state and federal courts across the country.

Marianne previously served as a law clerk to the Honorable Steven M. Colloton on the Eighth Circuit Court of Appeals. She maintains an active pro bono practice focused on civil rights and housing issues.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.