Constantina Mirabile (Of Counsel-West Palm Beach, FL), Melissa Murphy-Petros (Of Counsel-Chicago, IL) and Anjali Das (Partner-Chicago, IL) represented an educational technology company that provides subscribers with access to online educational courses in a Video Privacy Protection Act (VPPA) class action filed in the U.S. District Court for the Southern District of Florida. The plaintiff, a subscriber, allegedly viewed online course content offered by our client, and filed a putative class action on behalf of herself and all other subscribers for violations of the VPPA. The plaintiff alleged that Meta Pixel (a snippet of JavaScript code that tracks visitor activity on a website) was installed on our client’s website, which resulted in the disclosure of her personal information to Facebook, including the content she viewed, without her consent. Wilson Elser filed a Motion to Compel Arbitration, noting that the plaintiff (like all subscribers) was required to accept defendant’s Terms of Use, which included a mandatory binding arbitration provision. Moreover, the Terms of Use explicitly stated that all parties waived the right to participate in a class action or representative proceeding with respect to any claim. The court promptly granted Wilson Elser’s motion pursuant to the Terms of Service agreement. The ruling underscores the importance of arbitration and class action waiver language in Terms of Use agreements.

NOTE: The Video Privacy Protection Act (VPPA), enacted in 1998, sought to preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials. Plaintiffs have sought to resuscitate the statute by bringing VPPA claims into the 21st century based on the premise that organizations that offer prerecorded, online audio visual content are “video tape service providers” within the meaning of the statute, the draw being VPPA class actions include statutory damages of up to $2,500 per violation.