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The United States District Court for the Eastern District of Michigan has allowed a putative class action under Michigan law to proceed against several magazine publishers that allegedly sold lists of their customers’ names, addresses, and subscription choices to third parties.  Earlier this week, in a case styled Halaburda v. Bauer Publishing Co., Judge Steeh of the Eastern District denied a motion to dismiss by defendants Bauer, Hearst Communications and Time, Inc., which had argued that the plaintiffs’ lacked standing to sue in federal court and that the complaint did not state a claim upon which relief could be granted. 

The plaintiffs sued under the Michigan Video Rental Privacy Act (“VRPA”), a statute that, despite its name, generally prohibits companies “engaged in the business of selling at retail, renting or lending books or other written materials, sound records, or video recordings” from disclosing “a record or other information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.”  The plaintiffs alleged that the publisher defendants “sell[] at retail . . . written materials” and that the defendants have disclosed information about subscription choices in violation of the statute’s disclosure prohibition. 

In their motion to dismiss, the defendants argued that the plaintiffs had not sufficiently alleged standing to bring their suit because the complaint did not plead a cognizable “injury” to plaintiffs.  The court rejected this argument, holding that because the VRPA allows a plaintiff to recover statutory damages, no allegation of actual injury is necessary for standing under the U.S. Constitution or under the statute itself.  In reaching this conclusion, the court distinguished Sterk v. Best Buy Stores (N.D. Ill Oct. 17, 2012), which held that plaintiffs suing under the federal Video Privacy Protection Act (“VPPA”) had failed to establish an injury sufficient for standing.  The court noted that while the VPPA contains language requiring an actual injury (plaintiffs must be “aggrieved” to recover), the VPRA does not.

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Continue Reading Action Against Magazine Publishers for Sale of Customer Lists Allowed to Proceed

Last week, Judge Armstrong of the Northern District of California dismissed a putative class action against Pandora alleging the Internet radio service had violated two Michigan state statutes by disclosing to third parties information about the plaintiff’s listening activity.  The plaintiff in Deacon v. Pandora Media, Inc. alleged that by (1) making publicly available his Pandora profile information and (2) posting his listening activity on Facebook, Pandora violated Michigan’s Video Rental Privacy Act (“VRPA”), Mich. Comp. Laws § 445.1711-1715, and its Consumer Protection Act (“CPA”), Mich. Comp. Laws § 445.903. 

The VRPA is among more than a dozen state analogues to the federal Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, which limits the ability of “video tape service providers’” to disclose information about specific video materials their customers have requested or obtained.  Although the VRPA similarly limits the ability of such entities to disclose information about their customers, the statute also applies to a broader class of entities and media.  Specifically, the VRPA provides that, absent a statutory exception:

“a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.”

The plaintiff in Deacon asserted that by sharing information about his listening activities with third parties, Pandora ran afoul of this provision’s prohibition against disclosure of information about a customer’s having obtained “sound recordings.” …

Continue Reading Court Dismisses Privacy Lawsuit Against Pandora

A federal district court in Michigan recently held that the federal CAN-SPAM Act preempts Michigan’s anti-spam law.  Unlike the federal law, Michigan’s statute offers individuals who receive unsolicited commercial email, or “spam,” a private cause of action.  The decision, by Judge Janet T. Neff of the Western District of Michigan in Hafke v. Rossdale…

Michigan Governor Jennifer Granholm has signed a legislative measure [PDF] that amends the state’s 2004 Identity Theft Protection Act (the “ITPA”).  The measure, which was enacted to combat phishing scams and other online fraud, amends the ITPA in several significant respects:

  • The new legislation makes it unlawful to gather personally identifying information through e-mail, a website,

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