Martinez v. D2C, LLC

United States District Court

for the

Southern District of Florida

Mauricio Martinez and others, on )

behalf of themselves and all others )

similarly situated, Plaintiffs, )

) Civil Action No. 23-21394-Civ-Scola

v.

)

D2C, LLC )

doing business as )

Univision NOW, Defendant. )

Order Denying Motion for Class Certification

Plaintiffs Mauricio Martinez, Guadalupe Rodriguez, and Francisco Giron,

in this putative class-action case, complain that Defendant D2C, LLC, doing

business as, Univision NOW (“Univision” or “Univision NOW”), violated the Video

Privacy Protection Act (“VPPA”) by disclosing to Meta Platforms, Inc.—formerly

known as Facebook (“Meta” or “Facebook”)—information personally linking them

to specific videos they had requested or obtained through Univision’s website.

(Am. Compl., ECF No. 35.) The Plaintiffs now seek class certification. (Pls.’ Mot.

for Class Cert., ECF No. 61.)1 Univision has responded (Def.’s Resp., ECF No. 69)

and the Plaintiffs have timely replied (Pls.’ Reply, ECF No. 74).2 Additionally,

Univision asks the Court to strike new evidence and argument that it says the

Plaintiffs presented in their reply. (Def.’s Mot. to Strike, ECF No. 79.)3 That

motion is also fully briefed (Pls.’ Resp., ECF No. 84; Def.’s Reply, ECF No. 88).4

After careful review of the briefing, the record, and the applicable legal

authorities, the Court denies the Plaintiffs’ motion for class certification (ECF

Nos. 60, 61) and denies Univision’s motion to strike (ECF Nos. 76, 79) as

moot.

1 The Court will cite primarily to the sealed filings in this case. A redacted version of each sealed

filing is also available on the docket. The corresponding publicly available docket entry for this

motion, and its associated exhibits, is located at ECF No. 60.

2 The corresponding publicly available docket entry for Univision’s response, and its associated

exhibits, is located at ECF No. 68, and for the Plaintiffs’ reply, and its associated exhibits, is

located at ECF No. 72.

3 The corresponding publicly available docket entry for Univision’s motion to strike, and its

associated exhibits, is located at ECF No. 76.

4 The corresponding publicly available docket entry for the Plaintiffs’ response, and its associated

exhibits, is located at ECF No. 82, and for Univision’s reply, and its associated exhibits, is

located at ECF No. 86.

1. Background

“Congress enacted the VPPA in 1988 after a newspaper published a profile

of Supreme Court nominee and then D.C. Circuit Judge Robert H. Bork which

contained the titles of 146 films he and his family had rented from a local video

store.” Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1252 (11th Cir. 2015)

(cleaned up). As one of the sponsors of the bill, Representative Al McCandless

explained that “people ought to be able to read books and watch films,”

“protected from the disruptive intrusion of a roving eye.” S. Rep. 599, 2d Sess.,

at 7 (1988), reprinted in 1988 U.S.C.C.A.N. 4342-1, 4342–7.

In its current form, the VPPA prohibits “[a] video tape service provider”

from disclosing a “consumer’s” “personally identifiable information” (sometimes

“PII”). 18 U.S.C. § 2710(b). A “consumer” is defined, under the Act, as “any

renter, purchaser, or subscriber of goods or services from a video tape service

provider.” 18 U.S.C. § 2710(a)(1). A “video tape service provider” is defined, in

turn, as a company “engaged in the business . . . of rental, sale, or delivery of

prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. §

2710(a)(4). And, finally, “‘personally identifiable information’ includes

information which identifies a person as having requested or obtained specific

video materials or services from a video tape service provider.” 18 U.S.C. §

2710(a)(3).

Univision is an online video-streaming service that offers both livestream

access to broadcast networks and video-on-demand (prerecorded) content.

During the class period—defined by the Plaintiffs as April 13, 2021, through May

8, 2023—the Plaintiffs were all paid Univision subscribers. In broad strokes, the

claims of the Plaintiffs—as consumers under the VPPA—boil down to their

contention that Univision—as a video tape servicer provider—violated their rights

by disclosing their Facebook identification numbers (“Facebook IDs”) along with

the prerecorded videos they accessed—personally identifiable information—to

Meta. (E.g., Am. Compl. ¶ 3.)

In pursuing redress under the Act, the Plaintiffs seek to certify a class they

define as follows:

All persons in the United States who purchased a subscription to

Univision NOW, requested or obtained prerecorded video materials

or services on Univision NOW’s website, used Facebook during the

time the Pixel was active on Univision NOW’s website from April

13, 2021[,] through May 8, 2023, and whose Personal Viewing

Information5 Univision NOW disclosed to Meta.

5 Though not specified in the Plaintiffs’ motion, “Personal Viewing Information” is defined in the

amended complaint as each Plaintiff’s “Facebook ID, along with specific video titles and the

(Pls.’ Mot. at 2.)6

The parties do not dispute, at least for the purposes of class certification,

many of the relevant facts in this case. Univision is a “video tape service

provider”; the Plaintiffs, as subscribers to Univision’s video-subscription service,

are “consumers”; and a consumer’s Facebook ID, together with the prerecorded

videos he or she requested or obtained, are “personally identifiable information.”

There is also no dispute, for now, that none of the Plaintiffs consented to

Univision’s alleged knowing disclosure of this information. Nor, finally, is there

any dispute that Univision’s web developer—Endeavor Streaming—identified

35,845 subscribers as having viewed at least one prerecorded video on

Univision’s website. Instead, the parties’ quarrels stem, primarily, from their

differing (or evolving) understandings of the functionality of the mechanism by

which Univision allegedly transmitted the subscribers’ personally identifiable

information to Meta.

As the Plaintiffs describe it, Facebook, in 2013, introduced a “Pixel,”

sometimes called the “Meta Pixel,” that allowed online businesses to track their

customers’ activities on their websites. (Am. Compl. ¶ 20.) This Pixel is an

embedded piece of commonly used computer code, installed on a company’s

website, that can collect and transmit data regarding a user’s website activities.

(Id. ¶¶ 20–23; Pls. Mot. at 3–4.) While the parties do not dispute that Univision

deployed the Pixel on its video-streaming website, they disagree as to how it

functioned (or at least disagree as to the significance of its functionality). In their

complaint and in parts of their briefing, the Plaintiffs maintain the Pixel

transmitted subscribers’ personally identifiable information automatically;

Univision, in contrast, identifies several conditions that had to be satisfied before

the Pixel would fire.

Notably, though, even the Plaintiffs’ own description of the operation of the

Pixel is not always consistent. On the one hand, in their complaint and, to an

extent, in their class-certification briefing, the Plaintiffs maintain that Univision

set up the Pixel so that it would automatically disclose a Univision subscriber’s

personally identifiable information any time someone logged into the subscriber’s

account and clicked on or requested a prerecorded video. (Am. Compl. ¶¶ 2–3,

19–23, 26, 28–29, 33, 37, 43, 49, 57, 73, 77; Pls.’ Mot. at 1 (“When a Univision

NOW subscriber clicked on a video, the Pixel simultaneously transmitted to Meta

the user’s Facebook ID . . . along with . . . the title of the of the video that

videos’ URLs identifying specific prerecorded videos each Plaintiff requested or obtained.” (Am.

Compl. ¶ 2.)

6 Because the ECF filing numbers of the sealed versus unsealed documents do not always

correspond, for the sake of consistency, the Court will reference the pagination supplied by the

parties in their documents.

subscriber requested or obtained.”), 4, 5.) At the same time, however, the

Plaintiffs also acknowledge, in their motion, that there were at least two

impediments to Univision’s transmitting a subscriber’s personally identifiable

information to Meta: (1) where the subscriber did not have a Facebook account;

and (2) where the subscriber was using a browser that blocked the Pixel under

the browser’s default settings. (Pls. Mot. at 6 n. 3.)

Univision, in contrast, describes several other conditions that had to be

met in order for a subscriber’s personally identifiable information to be

transmitted to Meta—aside from the two conditions acknowledged by the

Plaintiffs. (Def.’s Resp. at 3, 11.) As Univision’s expert, James Vint, points out,

whether a subscriber’s personal viewing information was actually transmitted

depended not only on whether the subscriber had a Facebook account and

whether a browser’s default settings allowed the Pixel transmission, but also on

(1) whether the subscriber was simultaneously logged into Facebook (Vint Decl.

¶¶ 24–31, ECF No. 69-2); (2) whether the subscriber accessed the prerecorded

video on Univision’s website through the same web browser and device through

which the subscriber (and not another user) was logged into Facebook (id. ¶¶

36–37; 47–50; 59–60); and (3) whether some other browser-related component

blocked the Pixel (id. ¶¶ 51–58).7

As the Court explains in more detail below, much of the controversy at the

center of this case springs from these divergent views on the Pixel’s functionality.

The Plaintiffs maintain that at least 17,000 subscribers, including (or in addition

to) the three representative Plaintiffs, have had their personally identifiable

7 Although Vint identifies what he says are eleven distinct factors, many of them are redundant

to variables already accounted for or are subsumed within one another. For example, Vint lists

as separate “variables” (1) whether a subscriber has a Facebook account (Id. ¶ 23); (2) whether

that subscriber was logged into their Facebook account while accessing the Univision video (id.

¶¶ 24–28); (3) whether the subscriber elected to remain signed in to Facebook during a prior

browsing session (id. ¶¶ 29–31); and (4) whether the subscriber accessed Facebook only through

the mobile application (id. ¶¶ 47–50). But these four variables are all accounted for under the

conditions that require a subscriber to have accessed the prerecorded video through the same

web browser and on the same device, as the subscriber (and not another user) used to log in to

Facebook. (Id. ¶¶ 36–37, 44–45, 59–60). Similarly, Vint also identifies as variables whether the

subscriber accessed Univision through its mobile application versus through its website and

whether the subscriber watched content from Univision’s live channels or DVR programming

versus selecting a video on demand. (Id. ¶¶ 32, 33–35.) But these factors too are already

accounted for in the starting figure of 35,845 Univision subscribers who viewed a prerecorded

video (and not content from Univision’s live channels) on Univision’s website. Finally, Vint lists

as other factors both (1) whether the subscriber accessed Univision’s website on a browser that,

by default, blocks the Pixel transmission (id. ¶¶ 38–43); or (2) if the subscriber accessed the

website through a browser that didn’t block the Pixel by default, whether some affirmative action

was taken on the browser to prevent the Pixel from transmitting anyway (such as blocking

cookies within the browser’s settings, enabling the browser cache to self-destruct, clearing

cookies, or deploying cookie blockers or anti-tracking software) (id. ¶¶ 51–58). But these are all

just different ways that a browser might block the Pixel from transmitting rather than distinct

factors.

information disclosed to Meta by Univision. In stark contrast, Univision

maintains that the Plaintiffs have failed to carry their burden of showing that

even a single subscriber has had their personally identifiable information

disclosed, including the three named Plaintiffs.

2. Legal Standard for Class Certification

Federal Rule of Civil Procedure 23 “establishes the legal roadmap courts

must follow when determining whether class certification is appropriate.” Valley

Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003). In view

of the “awesome power of a district court” in controlling the class action

mechanism, any decision to certify a class must rest on a “rigorous analysis” of

the requirements of Rule 23. See Sacred Heart Health Sys., Inc. v. Humana

Military Healthcare Servs., Inc., 601 F.3d 1159, 1169 (11th Cir. 2010) (cleaned

up); see also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).

While the district court’s class certification analysis “may entail some overlap

with the merits of the plaintiff’s underlying claim, Rule 23 grants courts no

license to engage in free-ranging merits inquiries at the certification stage.” See

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 185 L. Ed. 2d

308, 2013 WL 691001, at *7 (U.S. 2013) (cleaned up). Rather, “[m]erits questions

may be considered to the extent - but only to the extent - that they are relevant

to determining whether the Rule 23 prerequisites for class certification are

satisfied.” See id. “The burden of proof to establish the propriety of class

certification rests with the advocate of the class.” Valley Drug Co., 350 F.3d at

1187.

“Under Rule 23, certification is proper where the proposed classes satisfy

an implicit ascertainability requirement, the four requirements listed in Rule

23(a), and the requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v.

Vital Pharms., Inc., 621 F. App’x 945, 946 (11th Cir. 2015). Per “Rule 23(a), every

putative class first must satisfy the prerequisites of numerosity, commonality,

typicality, and adequacy of representation.” Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009) (cleaned up). Thus, Rule 23(a) is satisfied only

where:

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of

the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a). Moreover, where certification is sought under Rule 23(b)(3),

as it is here, a plaintiff must show, in addition to the four requirements of Rule

23(a), that “the questions of law or fact common to class members predominate

over any questions affecting only individual members, and that a class action is

superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3); Vega, 564 F.3d at 1265.

3. Analysis

The Plaintiffs maintain they have satisfied all the requirements for class

certification. As to the Rule 23(a) factors, the Plaintiffs contend, first, that based

on “reasonable inferences,” the Court may determine that Rule 23(a)(1)’s

numerosity requirement is satisfied. (Pls. Mot. at 5–6.) Second, they submit that

Rule 23(a)(2)’s commonality requirement is met because each class member will

use common evidence or address common questions to establish the same four

elements under the VPPA: (1) whether Univision is a video-tape service provider;

(2) whether the information transmitted by the Pixel constituted the proposed

class members’ personally identifiable information; (3) whether Univision

knowingly disclosed the personally identifiable information; and (4) whether the

proposed class members are consumers. (Pls.’ Mot. at 6–10.) Third, the Plaintiffs

posit that Rule 23(a)(3)’s typicality requirement is satisfied because, like all class

members, the Plaintiffs were paid Univision subscribers, watched prerecorded

videos on the website, “and thus would have had their PII transmitted to Meta.”

(Pls.’ Mot. at 10–11.) And fourth, the Plaintiffs say that Rule 23(a)(4)’s adequacy

requirement is met because (1) there is no conflict of interest between the

Plaintiffs and the class members and (2) their counsel are experienced and

committed to vigorously prosecuting this case. (Pls.’ Mot. at 11–12.)

As to ascertainability, the Plaintiffs maintain that the class members who

meet the first two prongs of the proposed class—Univision subscribers who

requested or obtained prerecorded video materials—can be identified using

Univision’s own records which logged subscribers’ viewing histories. (Id. at 15.)

And, they say, the class members who meet the last two prongs—subscribers

who used Facebook while the Pixel was active and had their Personal Viewing

Information disclosed to Meta—can be identified through Meta’s own pixel-

transmission event data. (Id. at 15–16.) Accordingly, they say, the class is both

adequately defined and clearly ascertainable.

Finally, as to Rule 23(b)(3), the Plaintiffs assert they have established both

predominance and superiority. (Pls.’ Mot. at 12–15.) Regarding predominance,

the Plaintiffs maintain that “every element” of the class members’ claims can be

proved “through common evidence,” with no undermining individual questions.

(Pls.’ Mot. at 12, 13.) And, as to superiority, the Plaintiffs point primarily to

efficiencies to be gained and the insufficiency of the $2500 in statutory damages

applicable to each violation to justify spending the time, effort, and money

needed to litigate thousands of actions on an individual basis. (Id. at 13–15).

In opposing certification, Univision contends the Plaintiffs have failed to

carry their burden on all fronts: ascertainability, all four Rule 23(a) factors, and

both predominance and superiority under Rule 23(b)(3).

Although the Court finds the proposed class is ascertainable—considered

a prerequisite to the 23(a) analysis—it finds the Plaintiffs have not carried their

burden as to numerosity, as set forth below. See Cherry v. Dometic Corp., 986

F.3d 1296, 1302 (11th Cir. 2021) (“Class representatives bear the burden to

establish that their proposed class is adequately defined and clearly

ascertainable, and they must satisfy this requirement before the district court

can consider whether the class satisfies the enumerated prerequisites of Rule

23(a).”) (cleaned up). Because the Plaintiffs’ miss on numerosity is dispositive,

the Court declines to evaluate the other Rule 23 factors.

A. The proposed class is ascertainable.

The Court is not persuaded by Univision’s argument as to ascertainability:

its argument is aimed at the inadequacy of the cited records to identify class

members rather than whether, with more robust resources, the class would

ultimately be “capable of determination” through clear and objective criteria.

Cherry, 986 F.3d at 1304. Univision’s focus on the various logistical difficulties

is at odds with the Eleventh Circuit’s elimination of administrative feasibility as

a part of the ascertainability inquiry of a proposed class: determining a class

must just be possible, even if not easy or convenient. Id. at 1303 (“membership

can be capable of determination without being capable of convenient

determination”) (emphasis in original). Since the Eleventh Circuit’s clarification,

courts have distilled certain guiding principles. Among them, first, “the district

court must find that the proposed class [is] defined using clear and objective

criteria and not defined with vague and subjective criteria.” Fox v. Ritz-Carlton

Hotel Co., L.L.C., 345 F.R.D. 358, 364–65 (S.D. Fla. 2024) (Singhal, J.) (citing

Cherry, 986 F.3d at 1302–03). And second, the court must also “find that the

class is capable of being determined,” without regard to “how the plaintiff

proposes to apply the class criteria and actually identify its members.” Id. at

365.

Univision does not argue that the proposed class is defined with vague or

subjective criteria. Instead, it complains about the insufficiency of the records to

identify class members: “Univision NOW does not, and never has, tracked such

activity”; “This criterion, too, cannot be determined based upon existing records”;

“This is not information that is tracked or kept by Univision NOW, nor is it

information that appears to have been kept by Meta.” (Def.’s Resp. at 10.) At

heart, these are simply “rebranded administrative feasibility arguments.” Fox,

345 F.R.D. at 364 (rejecting a defendant’s arguments that “it would be difficult to

locate individuals who satisfy the . . . requirements in the proposed class[]” as

“irrelevant in a post-Cherry world”). In focusing its analysis on how the plaintiffs

propose to apply class criteria in order to identify class members, Univision fails

to adduce any meaningful argument that the proposed class is not capable of

being determined even if that determination would be extraordinarily difficult

considering the records the Plaintiffs propose relying on.

Without more, each of the criteria the Plaintiffs present is clear and

capable of objective determination: all people who (1) subscribed to Univision

NOW; (2) requested or obtained a prerecorded video on Univision NOW’s website;

(3) used Facebook while the Pixel was active; and (4) had their viewing

information disclosed to Meta. There appears to be no dispute from Univision

that, at a minimum, all these criteria are “premised on clear, historical facts that

don't require any level of subjectivity to ascertain.” Id. at 365. As such, even if

Univision is correct—that barriers to identifying the class members may

ultimately prove realistically insurmountable—the Court finds the proposed

class is nonetheless adequately defined and clearly ascertainable.

B. The Plaintiffs have failed to establish numerosity.

Nonetheless, the Court agrees with Univision that the Plaintiffs have not

carried their burden of showing numerosity. In the numerosity analysis, courts

typically consider fewer than twenty-one class members to be inadequate and

more than forty to be adequate, with “numbers falling in between . . . open to

judgment based on other factors.” Vega, 564 F.3d at 1267 (cleaned up). The

Court finds the Plaintiffs have fallen far short of this showing.

The bulk of the Plaintiffs’ case for certification rests on their central theory

that the mere presence of the Meta Pixel on Univision’s website resulted in the

transmission of tens of thousands of Univision subscribers’ personally

identifiable information from Univision to Meta.8 But this conclusory theory is

8 E.g., Am. Compl. ¶¶ 23 (“Univision NOW chose certain options . . . that track specific user

activity on Univision NOW’s website for automatic disclosure to Meta, including personally

identifiable information.”) (emphasis added), 28 (“[W]hen a user clicked on and requested a video

. . . Univision NOW disclosed to Meta . . . the specific video name that the digital subscriber

requested . . . and the digital subscriber’s [Facebook] ID to Facebook in a single transmission.”),

57 (“Univision NOW disclosed the personal viewing information of all of those subscribers”—who

requested or obtained specific video content—“to Facebook in violation of the VPPA”); Pls.’ Mot. at

1 (“When a Univision NOW subscriber clicked on a video, the Pixel simultaneously transmitted to

Meta the user’s Facebook ID . . . along with . . . the title of the of the video that subscriber

requested or obtained.”), 5 (“[T]he Pixel automatically transmitted the fact that the subscriber

requested or obtained that video to Meta”), 8, 11 (“[E]ach Plaintiff, like all Class Members, watch

directly undercut not only by Univision’s unrefuted expert testimony, but by the

Plaintiffs’ own concessions and evidence. Ultimately, the nonviability of the

Plaintiffs’ theory of automaticity dooms their attempt to establish numerosity.

In maintaining they have satisfied Rule 23(a)(1)’s numerosity requirement,

the Plaintiffs point to a series of “reasonable inferences” they say lead to a

showing that the class is so numerous that joinder of all members is impractical.

(Pls.’ Mot. at 5–6.) Their starting point is the 35,845 subscribers, at least, in the

United States, who Univision itself says viewed, during the relevant period, a

minimum of one prerecorded video on Univision’s website.9 (Pl.’s Mot. at 5.) On

the one hand, relying on their overarching theory, the Plaintiffs initially suggest

that this 35,845 figure directly correlates to the actual number of class

members, positing that “the Pixel automatically transmitted the fact that the

subscriber requested or obtained that video to Meta” every single time each one

of those subscribers viewed a video. (Id.) On the other hand, however, the

Plaintiffs themselves also acknowledge, in direct tension with this theory, at least

two impediments to a subscriber’s viewing information’s being transmitted to

Meta: (1) not having a Facebook account; and (2) using a browser that, by

default, blocks the Pixel. (Id. at 6 n. 3.) Based on just these two hurdles, the

Plaintiffs acknowledge an estimated 50% overall reduction to their initial 35,845

class size: they point to statistics regarding the percentage of people in the

United States who have Facebook accounts (68%) and the testimony of their

expert, Dr. Serge Egelman, regarding the percentage of the population who use a

web browser that would not block the Pixel transmission (70%), to conclude,

using “basic math,” that the class would be comprised of “at least approximately

17,000 individuals.” (Id.)

The Plaintiffs’ attempt to establish numerosity, however, is problematic for

several reasons. First, as to the Plaintiffs’ concession that a Pixel transmission is

contingent on whether a Univision subscriber has a Facebook account, their

reliance on a Pew Research poll for their supposition that this would only knock

out 32% of their 35,845 starting point is not particularly helpful. (Pls.’ Reply at 6

n. 3.) As the Plaintiffs concede in reply, “being logged in to Facebook”—not just

having an account—“is a prerequisite to the Pixel disclosing information.” (Pls.’

Reply at 5 (emphasis added).) Moreover, as Univision’s expert points out (and, as

prerecorded videos on Univision NOW’s website . . . and thus would have had their PII

transmitted to Meta . . . exactly as Univision had intended.”); Pls.’ Reply at 8 (“[T]he Pixel would

automatically fire when a subscriber viewed a prerecorded video on Univision NOW.”).

9 The Plaintiffs also emphasize that this number doesn’t even account for the users who may

have watched more than one video. (Pls.’ Mot. at 6.) While the Court understands this fact may

increase the absolute number of VPPA violations associated with a particular class member, the

Plaintiffs fail to articulate how an increased number of alleged violations per subscriber would

shed any light on the absolute number of members in the proposed class.

explained below, the Plaintiffs do not really dispute), even being simultaneously

logged in to Facebook is still not enough to necessarily prompt a Pixel

transmission: a subscriber must also have accessed the prerecorded video on

Univision’s website through the same web browser and device through which the

subscriber (and not another user) was logged into Facebook. (Vint Decl. ¶¶ 28

(“[i]f a user visited the [Univision] Website but was not currently logged in to

Facebook on the same device and browser, the c_user”—which contains a

subscriber’s Facebook ID— “would not be sent to Facebook”) (emphasis in

original), 36–37, 47–50; 59–60). Accordingly, the Plaintiffs’ statistic, even taken

at face value, is simply a starting point. That is, while 68% of the population in

the United States purportedly “has a Facebook account”—or, according to the

website the Plaintiffs reference, “ever use Facebook”—that tells the Court

nothing about what percentage of the 35,845 Univision subscribers who viewed

a prerecorded video were also logged in to their own Facebook accounts, through

the same browser, and on the same device on which they viewed that video.

The Plaintiffs’ assessment of the effect that web-browser blockers had is

similarly problematic. To begin, the Court is unable to reconcile the Plaintiffs’

proffer that “70% of the United States population uses a browser that does not

block the Pixel” with the record evidence they cite to support it. (Pls.’ Reply at 6

n. 3 (citing Egelman Rep. ¶ 44).) In the report testimony that the Plaintiffs rely

on, the Plaintiffs’ expert opines that Google Chrome and Microsoft Edge, which,

combined, make up 70% of the market share, are both likely to allow the Pixel

transmission “under default configurations.” (Egelman Rep. ¶ 44.) Missing from

this explanation, however, is any information about what percentage of that

population actually use their Chrome or Edge browser under this default

configuration. Accordingly, while the Court can accept that about 70% of the

35,845 subscribers likely used either Chrome or Edge, the Court is once again

left to arbitrary speculation as to what percentage of that 70% used their

browser under the default settings. Further, Univision lists several deliberate

actions a user can take that would also block any Pixel transmission to Meta:

enabling a browser’s third-party cookie blockers; setting a browser’s cache to

“self-destruct”; clearing cookies upon the end of a browser session; and

deploying add-on software that blocks third-party cookies. (Def.’s Resp. at 11

(citing Vint Decl. ¶¶ 51–58).) The Plaintiffs account for none of these variables.

Further, the Plaintiffs do not put up any real challenge to all these

additional conditions that Univision identifies as impeding the Pixel’s

transmissions. Instead, they simply characterize those factors, in passing, as

“manufactured” and “purported,” without actually disputing their significance or

effect on the operation of the Pixel. (Pls.’ Reply at 1, 5.) Indeed, the Plaintiffs

tacitly acknowledge the existence of these factors, maintaining only that they are

simply irrelevant. As the Plaintiffs see it, determining on a case-by-case basis

whether all these conditions have been met is unnecessary because the very fact

of a disclosure of a subscriber’s personal viewing information would necessarily

mean that all of the factors “would already have been accounted for.” (Id. at 1–2.)

But in the numerosity analysis, this puts the cart before the horse.

In the end, the Plaintiffs fail to supply “the means to make a supported

factual finding, that the class [to be] certified meets the numerosity

requirement.” Vega, 564 F.3d at 1267. Right out of the gate, as explained above,

the Plaintiffs concede that their blanket contention that “[e]ach time a subscriber

viewed a video on the Univision NOW website, the Pixel automatically

transmitted the fact that the subscriber requested or obtained that video to

Meta” is untrue.10 As the Plaintiffs themselves explicitly acknowledge, “not every

single one of the at least 35,845 subscribers who watched at least one

prerecorded video on . . . Univision’s website will be Class members” because

either they don’t have a Facebook account or used a website browser that

blocked the transmission. (Pls.’ Mot. at 5–6, n. 3.) Again, as elaborated on above,

in order for the Pixel to have transmitted the relevant information to Meta,

several conditions must have been met. To summarizer, in addition to viewing or

selecting the prerecorded video through Univision’s website, the subscriber must

have also:

(1) had a Facebook account at the time the video was selected;

(2) used a web browser that didn’t block the Pixel by default;

(3) been simultaneously logged into the subscriber’s own Facebook account

while selecting the video;

(4) been simultaneously logged into Facebook on the same device that the

subscriber used to select the video;

10 Despite acknowledging in their motion for class certification that there are at least some

factors that would prevent the Pixel from transmitting information to Meta when a subscriber

views a video, the Plaintiffs nonetheless maintain in their reply that “the Pixel would

automatically fire when a subscriber viewed a prerecorded video.” (Pls.’ Reply at 8.) But to

support their claim, they rely on Univision’s corporate representative’s testimony that “if a user

views a video, a Pixel could be fired” (Univision Dep. at 58:10–12 (emphasis added)) and that

Univision’s “intention” was that when a “video player page” loads “the Pixel would fire” (id. 63:15–

19 (emphasis added)). (Pls.’ Reply at 8.) This testimony doesn’t come even close to doing the

heavy lifting the Plaintiffs require of it. If anything, it undercuts the Plaintiffs’ claims as to the

immutability of the Pixel transmissions. In their reply, the Plaintiffs also maintain that, for the

class to have fewer than forty members, “the Pixel would had to have fired in only 0.1% of

instances where a subscriber viewed a prerecorded video.” (Pls.’ Reply at 8.) While the Plaintiffs

argue “[t]hat is not a reasonable interpretation,” they don’t explain why except to point out that

“Univision did not produce a single document evidencing any instance in which the Pixel

malfunctioned.” (Pls.’ Reply at 8–9.) But, again, by the Plaintiffs’ own admission, there are any

number of conditions—notwithstanding any “malfunction[s]”—that would prevent the Pixel from

firing.

(5) been simultaneously logged into Facebook using the same browser

through which the subscriber selected the video; and

(6) not deployed any number of browser settings or add-on software that

would have blocked the Pixel.

As previously explained, the Plaintiffs account for the first two conditions in their

motion, reducing the potential class size, right off the bat on their own, from

35,845 to 17,000. (Pls.’ Reply. at 6 n. 3.) And though the Plaintiffs neglect to

mention it their motion, the Court notes that their expert remarked that 79% of

Facebook users never log out of Facebook, with only 7% logging out regularly

and only 5% doing so always. (Egelman Rep. ¶ 42.) Conservatively, this would

appear to further reduce the potential class by, at minimum, another 12% or to

about 15,000 members. From there, however, the Plaintiffs leave the Court

adrift.

The Court has (1) no supportable way of guessing how many of these

15,000 were also using the same device on which they were logged in to their

Facebook account as they used to access the Univision video; (2) no non-

speculative basis for estimating how many of those subscribers were also logged

into their Facebook account on the same web browser through which they

accessed the Univision video; and then, (3) no meaningful way of surmising how

many of those had not deployed any one of several mechanisms that would have

blocked the Pixel. While certainly the Court may reasonably “make common

sense assumptions in order to find support for numerosity,” the Plaintiffs here

have made no effort to supply even an inkling of how these various factors might

affect the class size here. Marko v. Benjamin & Brothers, LLC, No. 6:17-CV-1725-

ORL-41GJK, 2018 WL 3650117, at *5 (M.D. Fla. May 11, 2018). They provide no

way of estimating the number of users who log into Facebook on one device—

say, a cell phone—and access Univision content on another—for example a

laptop. Nor do the Plaintiffs hazard even a guess as to the number of users who,

even if using the same device, access Facebook through either another web

browser or the mobile application.11 And, as addressed above, the Plaintiffs fail

to supply any indication of the percentage of users who, despite using a browser

that would not block the Pixel by default, have deployed a setting or other

software that would. Finally, the Plaintiffs fail to account for Univision

11 Univision’s expert, in explaining that the Pixel would not fire if a subscriber was logged into

Facebook only via its mobile application, notes that “98.5% of [Facebook] users access[] the

platform with a mobile device and 81.8% of those users only use a phone to access the social

network.” (Vint Decl. ¶ 48.) This data point isn’t particularly helpful though because it doesn’t

clarify how many users might log in to Facebook using its mobile application versus using a web

browser. However, it proves the point that, without any guidance from the Plaintiffs, the

percentage of subscribers satisfying any one condition, never mind all three, could readily drop

the class size below the threshold of members considered presumptively impracticable to join.

subscribers who might have accessed a prerecorded video on a device on which

another person, perhaps another family member, has logged into Facebook using

an account not associated with the Univision subscriber’s account. In such a

case, according to Univision’s expert (and unrebutted by the Plaintiffs), the

viewing history transmitted to Meta would not have been correlated to the

Univision subscriber whose account was used to view the video. (Vint Decl. ¶¶

59, 60.) Instead, the transmission would have linked the viewing history with the

Facebook ID of whatever Facebook account happened to be logged in at the time,

even if that Facebook account didn’t belong to the Univision subscriber through

whose account the video was selected. This is particularly problematic because

the Plaintiffs fail to explain how one might be able to differentiate between a Pixel

transmission of, on the one hand, the Facebook ID of the Univision subscriber

versus, on the other, the Facebook ID of whoever happened to be logged in on

the device that was used by the Univision subscriber.

Without “some showing” as to these several variables, the Plaintiffs have

not afforded the court “the means to make a supported factual finding, that the

class [to be] certified meets the numerosity requirement.” Vega, 564 F.3d at

1267 (emphasis in original). To be sure, any “inference of numerosity . . .

without the aid of a shred of . . . evidence [would be] an exercise in sheer

speculation.” Id.; see C-Mart, Inc. v. Metro. Life Ins. Co., 299 F.R.D. 679, 686

(S.D. Fla. 2014) (Middlebrooks, J.) (“[T]he Eleventh Circuit has made it

abundantly clear that the burden to satisfy numerosity is on the plaintiff seeking

to certify a class, and a plaintiff is not permitted to make a purely speculative

showing that numerosity has been met.”) (cleaned up); Hayes v. Wal-Mart Stores,

Inc., 725 F.3d 349, 358 (3d Cir. 2013) (“[W]here a putative class is some subset

of a larger pool, the trial court may not infer numerosity from the number in the

larger pool alone.”) The Plaintiffs “bear[] the burden of establishing every element

of Rule 23 and a district court’s factual findings must find support in the

evidence before it.” Vega, 564 F.3d at 1267. Although it may be tempting to

assume numerosity based on the sheer size of the Plaintiffs’ starting point of

35,845 (or even 15,000) members, such baseless assumptions cannot carry the

day. See Golden v. City of Columbus, 404 F.3d 950, 966 (6th Cir. 2005) (“[T[he

party seeking class certification bears the burden of showing impracticability

and mere speculation as to the number of parties involved is not sufficient to

satisfy Rule 23(a)(1).”) (cleaned up); Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671,

676 (S.D. Fla. 2007) (Seitz, J.) (denying certification where the plaintiff offered

“no means for rationally estimating which number of the total uninsureds are

class members,” as the plaintiff “cannot simply rely on the 24,000 figure and ask

the Court to infer that a minimum number paid the full bill given the sheer size

of the uninsured pool”).

The Plaintiffs failure to supply anything more than speculation as to class

size is particularly problematic in the face of Univision’s contention that the

Plaintiffs, through their motion, have failed to come forward with evidence that

any personally identifiable information at all has been disclosed. (Def.’s Resp. at

1.) While the Plaintiffs proffer that “Meta’s event data [will] show[] all Pixel

transmissions from UNOW to Meta during the Class Period,” Univision points

out that, based on the data produced by the time the motion for certification was

filed, “[t]here is no record that any identifying information regarding prerecorded

videos Plaintiffs allegedly viewed was transmitted or disclosed to Meta for any of

the three named Plaintiffs.” (Def.’s Resp. at 12 (emphasis in original).) Indeed,

as Univision explains (and the record appears to show), Meta told the Plaintiffs,

in response to their subpoena, that, based on the information provided, it was

unable to identify any Pixel event data for Plaintiffs Martinez and Rodriguez. (Id.)

And, as to Plaintiff Giron, Meta’s information did not identify any specific video

material he viewed. (Id.) Importantly, in their motion, the Plaintiffs neglect to

identify any record evidence showing that each one of them watched a

prerecorded video on Univision’s website while satisfying every single condition

required for the Pixel to fire. So, not only do they fail on the numerosity front,

their initial showing on even their very own claims is not particularly compelling.

In sum, the Plaintiffs’ motion for class certification fails because they did

not carry their burden of establishing numerosity.

C. The Court declines to consider new information presented in the

Plaintiffs’ reply.

In their reply, the Plaintiffs point to newly identified records from Meta

that they say “unequivocally show that Univision disclosed PII to Meta.” (Pls.’

Reply at 1.) These records include a spreadsheet of data that purportedly relates

to Martinez as well as “an additional 2,800 rows of a sampling of Pixel event

data” which “is expected to include multiple additional instances of Univision

disclosing PII to Meta.” (Id. (emphasis added).) According to the Plaintiffs, these

records, identified after they filed their motion for certification, establish

numerosity because “Martinez’s Meta Event Data actually shows improper

disclosures.” (Id. at 8.)

Two problems. First, the Court is not inclined to consider this new

information, supplied for the first time in in the Plaintiffs’ reply. Part of the

problem with these newly supplied records is that the Plaintiffs fail to show that,

despite their diligence, they were not able to access this evidence prior to filing

their motion for class certification. Additionally, the introduction of these records

now seems to move the goal posts mid-game. It shifts the focus of the Plaintiffs’

numerosity argument from being entirely on Univision’s subscriber-viewer

records, to Meta’s records, which the Plaintiffs now say definitively show

Univision’s repeated disclosures of personally identifiable information. The Court

agrees with Univision that, to the extent this new position, based on new

evidence, represents the Plaintiffs’ attempt to shift their showing of numerosity—

from purported assumptions flowing solely from the sheer number of Univision

subscribers who viewed prerecorded videos to purportedly multiple instances of

Pixel disclosures shown by Meta’s event records—the tactic is decidedly unfair.

See Douse v. Traeger, No. 22-13949, 2023 WL 5569289, at *3 (11th Cir. Aug. 29,

2023) (“[T]his Court does not consider arguments raised for the first time in a

reply brief.”); Amargos v. Verified Nutrition, LLC, 666 F. Supp. 3d 1249, 1250

(S.D. Fla. 2022) (Bloom, J.) (“Arguments not properly presented in a party’s

initial brief or raised for the first time in a reply brief are deemed waived.”)

(cleaned up); Rindfleisch v. Gentiva Health Services, Inc., 22 F. Supp. 3d 1295,

1301 (N.D. Ga. 2014) (“As a general rule, federal courts do not consider

arguments that are presented for the first time in a reply brief.”). The Court finds

the new evidence and arguments presented here particularly problematic

because they are not responsive to Univision’s opposition, but instead supply

entirely new theories upon which the Plaintiffs seek to justify class certification.

Second, even if the Court should, or were to, consider the new evidence

and theories, the Plaintiffs’ new showing still fails to move the needle with

respect to numerosity for several reasons. For starters, even assuming the new

Meta event data did show that Univision disclosed Martinez’s personally

identifiable information in at least one instance, this only gets the Plaintiffs to

one “class member.” Nor is the Plaintiffs’ reliance on their expert’s opinion that

other data Meta committed to producing (but hadn’t yet done so) “would include

multiple instances of Univision disclosing Class members’ PII to Meta” any more

helpful to their cause. It is far too speculative. Not only does their expert opine

on data he has never seen, but his general description of “multiple” potential

class members still fails to provide the Court with any real basis from which it

could infer numerosity. Instead, it again amounts to “mere speculation as to the

number of parties involved and general allegations of numerosity,” which “are

insufficient to satisfy Rule 23(a)(1).” Gayle v. Meade, 614 F. Supp. 3d 1175, 1196

(S.D. Fla. 2020) (Cooke, J.). Perhaps recognizing this flaw, the Plaintiffs, in reply,

continue to focus, once again, on the 35,845 Univision subscribers who viewed

prerecorded videos in their endeavor to show numerosity. And, just as that

theory falls short in their motion, it falls short in their reply as well. See

Guarisma v. Hyatt Equities, LLC, No. 1:17-CV-20931-UU, 2017 WL 6949266, at

*7 (S.D. Fla. Sept. 28, 2017) (Ungaro, J.) (finding a plaintiff failed to show

numerosity when he posited that, even if only 1% of the potential 219,087 class

members qualified, he would easily satisfy the numerosity requirement).

In sum, the Court finds the new evidence and arguments springing

therefrom are improperly submitted in reply, denying Univision a fair chance of

fully addressing them in its opposition and resulting in an unnecessary

multiplication of these proceedings. Accordingly, the Court declines to consider

them. Conversely, even if the Court did consider them, the new evidence and

argument fail, in any event, to help establish numerosity. Either way, Univision’s

motion to strike that new evidence and argument (or, alternatively, for leave to

file a sur-reply) is rendered moot.

4. Conclusion

As set forth above, the Court denies the Plaintiffs’ motion for class

certification (ECF Nos. 60, 61) and denies as moot Univision’s motion to strike

(ECF Nos. 76, 79).

Done and ordered in Miami, Florida, on October 1, 2024.

Robert N. Scola, Jr.

United States District Judge