Amicus Curiae Brief — National Basketball Association, Petitioner v. Michael Salazar

No. 24-994

____________

NATIONAL BASKETBALL ASSOCIATION,

Petitioner,

v.

MICHAEL SALAZAR,

Respondent.

____________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

____________

BRIEF OF THE NATIONAL RETAIL

FEDERATION AND INTERACTIVE

ADVERTISING BUREAU AS AMICI CURIAE

IN SUPPORT OF PETITIONER

____________

Michael Dominic Meuti

*Counsel of Record

BENESCH, FRIEDLANDER,

COPLAN & ARONOFF LLP

127 Public Square

Suite 4900

Cleveland, Ohio 44114

(216) 363-6246

mmeuti@beneschlaw.com

Attorney for Amici Curiae

May 2, 2025

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..................................................... i

TABLE OF AUTHORITIES ............................................. iii

NATIONAL RETAIL FEDERATION STATEMENT

OF INTEREST.....................................................................1

INTERACTIVE ADVERTISING BUREAU

STATEMENT OF INTEREST ............................................2

SUMMARY OF ARGUMENT ...........................................3

ARGUMENT .......................................................................5

I. EXPANSIVE LIABILITY UNDER THE VPPA

POSES A SIGNIFICANT THREAT TO THE RETAIL

AND ADVERTISING INDUSTRIES. ................................5

II. CLASS-ACTION LAWSUITS UTILIZING

REPURPOSED STATUTES, LIKE THE VPPA

CLAIMS HERE, UNNECESSARILY BURDEN

RETAILERS AND ADVERTISERS. ...............................10

A.

Telephone Consumer Protection Act

(“TCPA”), 47 U.S.C. § 227 ................................10

B.

California Invasion of Privacy Act (“CIPA”),

Cal. Penal Code §§ 631(a) & 638.51 ..................12

C.

Video Privacy Protection Act (“VPPA”),

18 U.S.C. § 2710 .................................................13

i

III. REPURPOSING OUTDATED STATUTES, LIKE

THE VPPA, DENIES RETAILERS, PUBLISHERS, AND

ADVERTISERS FAIR NOTICE OF WHAT

CONDUCT MAY BE CONSIDERED UNLAWFUL. .....16

CONCLUSION ..................................................................18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bouie v. City of Columbia,

378 U.S. 347 (1964)........................................... 17

Butcher v. Knudsen,

38 F.4th 1163 (9th Cir. 2022) ........................... 18

Dubin v. United States,

599 U.S. 110 (2023)........................................... 16

Ellis v. Cartoon Network, Inc.,

803 F.3d 1251 (11th Cir. 2015)......................... 16

Facebook, Inc. v. Duguid,

592 U.S. 395 (2021)......................................11, 16

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012)........................................... 16

Gardner v. MeTV Nat’l Ltd. P’ship,

132 F.4th 1022 (7th Cir. 2025) ......................... 13

Giaccio v. Pennsylvania,

382 U.S. 399 (1966)........................................... 17

Javier v. Assurance IQ, LLC,

No. 21-16351, 2022 WL 1744107

(9th Cir. May 31, 2022)..................................... 13

iii

Licea v. Hickory Farms LLC,

No. 23STC26148, 2024 WL 1698147

(Cal. Sup. Ct. Mar. 31, 2024)............................ 13

In re Meta Pixel Healthcare Litig.,

647 F. Supp. 3d 778 (N.D. Cal. 2022) ................ 7

In re Nickelodeon Consumer Privacy Litig.,

827 F.3d 262 (3d Cir. 2016) ......................... 15-16

Salazar v. Paramount Global,

133 F.4th 642 (6th Cir. 2025) ................13, 14, 16

St. Louis, I.M. & S. Ry. Co. v. Williams,

251 U.S. 63 (1919)............................................. 17

Statutes

California Penal Code §§ 631(a) & 638.51

(“CIPA”) ..............................................3, 12, 13, 15

Telephone Consumer Protection Act,

47 U.S.C. § 227 (“TCPA”) ............ 3, 10, 11, 15, 16

Video Privacy Protection Act, 18 U.S.C.

§ 2710 (“VPPA”) ............ 2, 3, 4, 5, 8, 9, 10, 13, 14,

15, 16, 17, 18

Other Authorities

158 Cong. Rec. H6849-01 (Dec. 18. 2012) ............. 16

Advance Monthly Sales for Retail and Food

Services, U.S. Census Bureau (March 2025),

https://www.census.gov/retail/marts/www/

marts_current.pdf .................................................... 5

iv

How Websites and Apps Collect and Use

Your Information, Fed. Trade Comm’n

Consumer Advice (Sept. 2023),

https://consumer.ftc.gov/articles/howwebsites-and-apps-collect-and-use-yourinformation#:~:text=When%20a%20websi

te%20you%20visit%20lets%20another%2

0company%20track%20you,your%20inter

ests%20and%20online%20activity ................... 12

Internet Advertising Report: Full year

2024 results, IAB & PWC (April 2025) .............. 6

Ivan Popov, Why Digital Presence Is Not A

Matter Of ‘If’ But ‘When’ For Businesses,

Forbes (July 12, 2023),

https://www.forbes.com/councils/forbesbu

sinesscouncil/2023/07/12/why-digitalpresence-is-not-a-matter-of-if-butwhenfor-businesses/ ............................................ 5

Jennifer A. Riley, Trend #3 – Privacy

Class Actions Continue To Proliferate

As Plaintiffs Search For Winning

Theories – Class Action Defense, Duane

Morris (Jan. 13, 2025),

https://blogs.duanemorris.com/classacti

ondefense/2025/01/13/trend-3-privacyclass-actions-continue-to-proliferate-asplaintiffs-search-for-winningtheories/#:~:text=Indeed%2C%20plaint

iffs%20initiated%20more%20than,alleg

ed%20violation%20of%20the%20VPPA......... 8, 9

v

Kate Dedenbach et. al, Tide May Be

Turning in Businesses’ Favor After Key

California Court Decisions in Website

Tracking Cases, Fisher Phillips

(Feb. 10, 2025),

https://www.fisherphillips.com/en/news

-insights/tide-maybe-turning-inbusinesses-favor-key-californiacourtdecisions-websitetrackingcases.html#:~:text=The%20tre

nd%20of%20digital%20wiretapping,aff

ected%20is%20closer%20to%205%2C0

00 ....................................................................... 12

NRF Forecasts Retail Sales to Reach at

Least $5.23 Trillion in 2024, Nat’l

Retail Federation (Mar. 20, 2024),

https://nrf.com/media-center/pressreleases/nrf-forecasts-retail-salesreach-least-523-trillion-2024 .............................. 6

Online Shopping Statistics, Capital One

Shopping Research (Mar. 11, 2025),

https://capitaloneshopping.com/researc

h/online-shopping-statistics/ .............................. 6

vi

NATIONAL RETAIL FEDERATION

STATEMENT OF INTEREST1

Established in 1911, the National Retail

Federation (“NRF”) is the world’s largest retail trade

association. The retail sector is the nation’s largest

private-sector employer, contributing $5.3 trillion to

annual GDP and supporting one in four American

jobs.

NRF’s membership includes retailers of all sizes,

formats, and channels of distribution, including

many businesses that sell goods online and

communicate

with

customers

through

a

website. Those members include not only retailers

and industry partners based in the United States,

but also companies headquartered in over 45

countries abroad. NRF’s members also are often

targeted as defendants in class actions. NRF is thus

familiar with class-action litigation, both from the

perspective of individual defendants in class actions

and from a more global perspective.

For over a century, NRF has been a voice for

every retailer and every retail job, communicating

the impact that retail has on local communities and

global economies. NRF’s amicus briefs have been

cited by multiple courts.

1 No counsel for any party authored this brief in whole or in

part, and no party, counsel for a party, or person or entity

other than amicus curiae, its members, and its counsel made

a monetary contribution intended to fund the brief’s

preparation or submission. Counsel of record for the parties

received timely notice of amicus’s intent to file this brief.

1

NRF files this brief to provide the Court with the

retail sector’s perspective on the Second Circuit’s

decision below, the circuit split that followed, and

the effects that the Second Circuit’s expansive view

of the VPPA threatens upon NRF’s members.

Targeted advertising of the kind virtually outlawed

by the Second Circuit’s decision is ubiquitous in the

retail industry. NRF members that offer their goods

and services online frequently create multimedia

content, like videos, for their websites. Therefore,

the questions presented in the Petition are

significant to the retail sector, its members, and

American consumers.

INTERACTIVE ADVERTISING BUREAU

STATEMENT OF INTEREST

Founded in 1996, the Interactive Advertising

Bureau (“IAB”) empowers the media and marketing

industries to thrive in the digital economy. Its

membership comprises more than 700 leading media

companies, brands, agencies, and the technology

firms responsible for selling, delivering, and

optimizing digital ad marketing campaigns. IAB

sponsors and conducts critical research on

interactive advertising, educates the business

community on the importance of digital marketing,

and promotes privacy compliance in the digital

advertising industry.

IAB and its members are interested in ensuring

that the digital advertising marketplace grows

through

technological

innovation,

increases

efficiency through industry standardization, and

promotes consumer privacy.

IAB members are

2

often targeted as defendants in class-action lawsuits

under the VPPA and state wiretapping laws. It

educates members on the challenges such lawsuits

pose to market participants. The Second Circuit’s

broad and acontextual reading of the VPPA

undermines those interests. The IAB and its

members thus urge the Court to grant certiorari to

resolve the circuit split and reverse the Second

Circuit.

SUMMARY OF ARGUMENT

The Second Circuit’s broad interpretation of the

Video Privacy Protection Act (the “VPPA”) and the

resulting circuit split, as highlighted in the National

Basketball Association’s Petition for Writ of

Certiorari (the “Petition”), exposes retailers,

publishers, and advertisers alike to massive liability

for simply engaging in commonplace advertising

practices.

These practices, including targeted

advertising through data-tracking software like

Meta Pixels and posting videos on websites, were

never contemplated by the Congress that enacted

the VPPA to protect video-rental records.

For years, the plaintiffs’ bar has utilized

similarly outdated statutes, like the Telephone

Consumer Protection Act and the California

Invasion of Privacy Act, to target modern

technologies. While in those cases courts have

worked to cabin liability, the same is not true under

the VPPA. As current VPPA jurisprudence stands,

retailers, publishers, and advertisers could face

inconsistent judgments, forum shopping by

plaintiffs, and severe penalties based not on any

3

wrongdoing, but instead on where consumers access

their websites.

The Second Circuit’s expansive reading of the

VPPA poses significant due-process concerns for

retailers in future enforcement actions. Retailers,

publishers, and advertisers cannot be expected to

anticipate that engaging in common onlineadvertising practices could trigger liability under a

statute written before the Internet existed.

The NRF and IAB urge the Court to grant

certiorari and reverse the Second Circuit, resolve the

circuit split, and provide due process to retailers and

advertisers across the country.

4

ARGUMENT

I.

Expansive liability under the VPPA poses

a significant threat to the retail and

advertising industries.

The Petition poses a simple issue—how

expansive is the VPPA’s reach? With a $2,500-perviolation statutory penalty, the answer matters to

potential defendants. For the retail and advertising

industries, the Second Circuit’s broad application

poses a true threat. Three factors explain why:

(1) retailers’ significant role in the United States

economy; (2) modern retail and e-commerce

advertising practices; and (3) the prevalence of classaction lawsuits against retailers and advertisers.

First, the retail industry represents a

significant portion of the U.S. economy. In March

2025 alone, the United States Census Bureau

reported that retail and food services totaled $734.9

billion in sales. Advance Monthly Sales for Retail

and Food Services, U.S. Census Bureau (March

2025).2

Online sales represent an increasing

proportion of these sales. To meet consumers’

demands and remain competitive, retailers must

maintain an online presence. Ivan Popov, Why

Digital Presence Is Not A Matter Of ‘If’ But ‘When’

For Businesses, Forbes (July 12, 2023).3 In 2025,

non-store and online sales are expected to grow

2 https://www.census.gov/retail/marts/www/marts_current.pdf

3 https://www.forbes.com/councils/forbesbusinesscouncil/2023/

07/12/why-digital-presence-is-not-a-matter-of-if-but-whenfor-businesses/

5

between 7% and 9% to a range of $1.47 trillion to

$1.50 trillion. NRF Forecasts Retail Sales to Reach

at Least $5.23 Trillion in 2024, Nat’l Retail

Federation (Mar. 20, 2024).4 In 2023, 274.7 million

Americans shopped online—more than 80% of the

total population. Online Shopping Statistics, Capital

One Shopping Research (Mar. 11, 2025).5 In 2024,

internet advertising revenue reached its highest

recorded level of $258.6 billion, with digital video as

the fastest growing advertising format representing

$62.1 billion in revenue.

Internet Advertising

Report: Full year 2024 results, IAB & PWC (April

2025).

Second, retailers, publishers, and advertisers

often utilize data-tracking software, like Meta

Pixels, to help deliver relevant advertisements to

consumers.

These technologies observe users’

interests and activities as they visit a given website.

The Meta Pixel is a piece of code placed on a website

that records a user’s activities, including page views,

product views, items added to a virtual shopping

cart, and purchases. When that information is

connected to the user’s Facebook ID, the Meta Pixel

enables the website operator to better assess the

effectiveness of its Facebook ad campaigns and to

better target ads to users who have previously

interacted with the website. As one district court

described the Meta Pixel’s operations:

4 https://nrf.com/media-center/press-releases/nrf-forecasts-

retail-sales-reach-least-523-trillion-2024

5 https://capitaloneshopping.com/research/online-shopping-

statistics/

6

To understand how the Meta Pixel

typically works, imagine the following

scenario. A shoe company wishes to gather

certain information on customers and potential

customers who visit its website. The shoe

company first agrees to Meta's Business Tools

Terms … which govern the use of data from the

Pixel. The shoe company then customizes the

Meta Pixel to track, say, every time a site

visitor clicks on the “sale” button on its website,

which is called an “Event.” Every time a user

accesses the website and clicks on the “sale”

button (i.e., an “Event” occurs), it triggers the

Meta Pixel, which then sends certain data to

Meta. Meta will attempt to match the customer

data that it receives to Meta users—Meta

cannot match non-Meta users. The shoe

company may then choose to create “Custom

Audiences” (i.e., all of the customers and

potential customers who clicked on the “sale”

button) who will receive targeted ads on

Facebook, Instagram, and publishers within

Meta’s Audience Network. Meta may also

provide the shoe company with de-identified,

aggregated information so the shoe company

understands the impact of its ads by measuring

what happens when people see them. Meta

does not reveal the identity of the matched

Meta users to the shoe company.

In re Meta Pixel Healthcare Litig., 647 F. Supp.

3d 778, 784–85 (N.D. Cal. 2022) (citations omitted).

In other words, the information that the Meta

Pixel collects enables advertisers to ensure that

7

their Facebook advertisements reach the relevant

audience. Websites that install a Meta Pixel do not

distribute

that

information

beyond

the

Meta/Facebook ecosystem.

The Meta Pixel and similar technologies thus

offer cascading benefits to the marketplace. On the

broadest level, targeted advertising helps keep the

Internet free and resources available through

leveraging consumer data to generate revenue

efficiently. Within the retail industry and publisher

platforms, consumers are not inundated with

irrelevant ads, as is common in print or radio

broadcast advertising, or with antiquated or lowproduction

websites.

Instead,

more-efficient

advertising saves retailers’ money (allowing them to

monetize their content without charging users

directly), and lowers prices of goods, enhancing the

overall consumer experience.

Third, due to retailers,’ publishers,’ and

advertisers’ inherent consumer-facing nature and

enhanced online visibility, they are often the target

of class actions—an issue that does not plague other

intermediaries, like distributors.

And while

plaintiffs assert these class actions suits under any

number of consumer-oriented statutes, the VPPA is

rapidly becoming the plaintiffs’ bar’s flavor of the

month. Since 2022, over 500 class-action lawsuits

have been filed against various entities and retailers

seeking redress for purported violations of VPPA.

Jennifer A. Riley, Trend #3 – Privacy Class Actions

Continue To Proliferate As Plaintiffs Search For

Winning Theories – Class Action Defense, Duane

8

Morris (Jan. 13, 2025).6 The circuit split that in the

Petition predicted—and that now exists—

underscores the trend of plaintiffs’ lawyers dredging

up VPPA claims.

These three factors highlight the importance of

the issue and the need for the Court to grant the

NBA’s Petition. Now more than ever, retailers,

publishers, and advertisers create and implement

video content on their websites. At the same time,

these websites utilize data-tracking software for

advertising purposes. The Second Circuit’s broad

VPPA interpretation would effectively ban targeted

advertising, transforming a billion-dollar industry

while simultaneously subjecting retailers and

advertisers to hundreds of millions of potential

claimants who shop online in the United States.

What is more, the circuit split complicates

retailers,’ publishers,’ and advertisers’ operations.

Their websites are accessible from anywhere. Yet

because of the split, different laws governing VPPA

liability exist in different parts of the country.

Complying with the stricter regime would require

retailers, publishers, and advertisers to discontinue

offering multimedia video content, using targeted

advertising, or both. After all, each may not be able

to modify the practices as its customers or users in

some circuits, but not others. The retail and

6 https://blogs.duanemorris.com/classactiondefense/2025/01/13

/trend-3-privacy-class-actions-continue-to-proliferate-asplaintiffs-search-for-winningtheories/#:~:text=Indeed%2C%20plaintiffs%20initiated%20

more%20than,alleged%20violation%20of%20the%20VPPA.

9

advertising industries need the Court to resolve this

circuit split.

II. Class-action lawsuits utilizing repurposed

statutes, like the VPPA claims here,

unnecessarily burden retailers and

advertisers.

For years, the plaintiffs’ bar has jammed

square pegs into round holes by repurposing

consumer-protection statutes aimed at decades-old

technology for putative class-action suits based on

modern technology. These statutes create private

rights of action and offer lucrative statutory-damage

awards. Yet they do virtually nothing to enhance

consumer wellbeing.

Instead, by imposing

draconian litigation costs onto retailers, publishers,

and advertisers—costs that are ultimately borne by

consumers—this practice of repurposing decades-old

statutes makes consumers worse-off.

A. Telephone Consumer Protection Act

(“TCPA”), 47 U.S.C. § 227

Congress enacted the TCPA in 1991 to prohibit

telemarketers from using random- and sequentialnumber dialing systems to call, among other things,

cellphone numbers.

Passed at a time when

cellphone users paid for service by the minute,

Congress intended for the TCPA to curb robocalls

made using this specific type of autodialing

equipment prevalent in the 1990s.

Contravening this legislative intent and context,

the plaintiffs’ bar attempted to expand the TCPA’s

10

reach to other technologies, such as social-media

platforms that maintain a database of phone

numbers and program equipment to send automated

text messages to those numbers. These suits led to

a circuit split over whether a TCPA suit must

involve technology that generates random or

sequential phone numbers, like the autodialing

systems of the 1990s, or whether it could involve

other more modern technologies.

The Court resolved that split and rid TCPA

jurisprudence of the disconnect between the

technology that the statute actually regulated and

the technologies to which the plaintiffs’ bar had

subjected it. In Facebook, Inc. v. Duguid, the Court

held that TCPA liability requires the technology in

question to mirror the 1990s autodialing system.

592 U.S. 395 (2021). The Court explained that

“[e]xpanding the definition of an autodialer to

encompass any equipment that merely stores and

dials telephone numbers would take a chainsaw to

these nuanced problems when Congress meant to

use a scalpel.” Id. at 405. The plaintiffs’ expansive

reading defied the plain text and the statutory

context and yielded absurd results.

That is,

subjecting a vast class of individuals—that Congress

never intended to penalize (or, at the time, could not

have predicted to exist)—to steep statutory

penalties.

11

B. California Invasion of Privacy Act

(“CIPA”), Cal. Penal Code §§ 631(a) &

638.51

California enacted the CIPA in 1967 to prohibit

unlawful wiretapping, such as the installation of pen

registers or trap-and-trace devices without a court

order or consent from the user. But now, the

plaintiffs’ bar is using the CIPA’s aiding-andabetting provisions to assert claims against websites

that use third-party data-analytics software (such

as, chatbots, session replay, and tracking pixels) to

track or record customer communications and

interactions. In fact, since 2022, over 1,000 have

been filed under the CIPA on this basis. Kate

Dedenbach et. al, Tide May Be Turning in

Businesses’ Favor After Key California Court

Decisions in Website Tracking Cases, Fisher Phillips

(Feb. 10, 2025).7

Almost all websites use third-party dataprocessing software to improve their functionality.

How Websites and Apps Collect and Use Your

Information, Fed. Trade Comm’n Consumer Advice

(Sept. 2023).8 Therefore, any company with a

7 https://www.fisherphillips.com/en/news-insights/tide-may-

be-turning-in-businesses-favor-key-california-courtdecisions-website-trackingcases.html#:~:text=The%20trend%20of%20digital%20wireta

pping,affected%20is%20closer%20to%205%2C000.

8 https://consumer.ftc.gov/articles/how-websites-and-apps-

collect-and-use-yourinformation#:~:text=When%20a%20website%20you%20visit

%20lets%20another%20company%20track%20you,your%20i

nterests%20and%20online%20activity.

12

website accessible in California faces potential

exposure to $5,000 in statutory penalties under a

law conceived of before the Internet existed.

Plaintiffs have had varied success in applying the

statute to modern technology. Compare Javier v.

Assurance IQ, LLC, No. 21-16351, 2022 WL

1744107, *2 (9th Cir. May 31, 2022) (reversing

dismissal of the plaintiff’s complaint and holding

that CIPA applies to Internet communications); with

Licea v. Hickory Farms LLC, No. 23STC26148, 2024

WL 1698147, *3–*4 (Cal. Sup. Ct. Mar. 31, 2024)

(finding that online devices that record IP addresses

cannot be pen registers and that “public policy

strongly disputes” a broad reading of CIPA because

it could “potentially disrupt a large swath of internet

commerce”).

C. Video Privacy Protection Act

(“VPPA”), 18 U.S.C. § 2710

VPPA suits are the latest chapter in this saga.

Claims under the VPPA have become increasingly

prevalent. Indeed, since the NBA filed its Petition,

the circuit split it predicted has developed, as the

Sixth and Seventh Circuits have issued conflicting

rulings interpreting the statutory term “consumer.”

See Salazar v. Paramount Global, 133 F.4th 642,

650–53 (6th Cir. 2025) (rejecting Respondent’s broad

interpretation of the VPPA and holding that a

“consumer” under the Act must have “subscribe[d] to

‘goods or services’” in the nature of video materials);

Gardner v. MeTV Nat’l Ltd. P’ship, 132 F.4th 1022,

1025 (7th Cir. 2025) (adopting the Second Circuit’s

expansive view of the VPPA and holding that any

purchase or subscription from a video service

13

provider satisfies the definition of “consumer”). And

one of these cases is a class action in which

Respondent himself is the named plaintiff.

In Paramount Global, the Sixth Circuit read the

term “consumer” narrowly by contextualizing it with

the overall statutory scheme. 133 F.4th at 650–52.

The court emphasized that common words like

“goods or services” must be given a “more targeted

reading” because “they are inordinately sensitive to

context.” Id. at 650 (cleaned up). In contrast, the

Second Circuit’s broad definition of consumer

confuses the plain meaning of the VPPA’s text with

the “pure definitional meaning” of the word. See id.

at 651, 651 n.9 (noting that the VPPA’s legislative

history also supports a narrow reading of

“consumer”). In adopting this reading, the Sixth

Circuit “merely recognize[d] a limitation that was

included in the statute’s plain meaning at the time

it was signed into law.” Id. at 651. Accordingly,

Respondent failed to state a claim under the VPPA

by failing to allege that he subscribed to an “audio

visual material.” Id. at 652.

The prevalence of VPPA claims poses a

particular threat to the retail and advertising

industries. Many retailers, publishers, and

advertisers utilize targeted advertising and

multimedia video content. This is especially true for

small businesses, which use targeted advertising as

a cost-effective way to get their products in front of

interested buyers. Small businesses would struggle

to achieve the same results without data tracking

and sharing because they lack the advertising

budgets of larger retailers, who could always employ

14

more traditional

methods.

(and

expensive)

advertising

The Second Circuit’s interpretation makes it

nearly impossible for any retailer to engage in

targeted advertising. There is no way for the

retailer to know: (1) whether that user has

purchased something in the past; or (2) where in the

United States that user accessed the website.

Because the retailer cannot verify and, likely, could

not afford the risk of whether it will be potentially

subject to $2,500 in penalties for sharing that user's

data, the retailer will not engage in targeted

advertising.

Suits like this one threaten a windfall for

plaintiffs and their lawyers.

And beyond the

potential recovery, litigation costs promise to

increase retailers’ costs, needlessly squeezing

retailers’ already-narrow margins. These lawsuits

offer no benefit to consumers, who suffer no injury

when websites use pixels to help direct

advertisements to the consumer’s interests.

Retailers will have to offset millions of dollars in

litigation costs by raising prices. In other words,

under a regime of expansive VPPA liability, the

plaintiffs’ bar may win, but American consumers are

guaranteed to lose.

Like the TCPA and CIPA, the VPPA stems from

pre-Internet

consumer-protection

policy.

“Congress’s purpose in passing [the VPPA] was quite

narrow”; Congress did not “intend[] for the law to

cover factual circumstances far removed from those

that motivated its passage.” In re Nickelodeon

15

Consumer Privacy Litig., 827 F.3d 262, 284 (3d Cir.

2016). Since enactment, Congress has not altered

the VPPA’s definition of “consumer” to encompass

people, like Respondent here, who do not exchange

money to access video content. See Ellis v. Cartoon

Network, Inc., 803 F.3d 1251, 1253 (11th Cir. 2015)

(discussing 158 Cong. Rec. H6849-01 (Dec. 18.

2012)).

Like the broad-reaching interpretation of the

TCPA that the plaintiffs’ bar advanced and this

Court rejected in Duguid, the Second Circuit’s

interpretation of the VPPA would “capture virtually

all” retailers, publishers, and advertisers and could

have broad effects “in the course of commonplace

usage” of targeted advertising and multimedia video

content. See Duguid, 592 U.S. at 405; see also

Paramount Global, 133 F.4th at 649–50 (quoting

Dubin v. United States, 599 U.S. 110, 120 (2023))

(rejecting Respondent’s definition of “consumer” in

part because it was based “solely on the broadest

imaginable definitions of its component words”).

III. Repurposing outdated statutes, like the

VPPA, denies retailers, publishers, and

advertisers fair notice of what conduct

may be considered unlawful.

Due process requires that the “laws which

regulate persons or entities must give fair notice of

conduct that is forbidden or required.” FCC v. Fox

Television Stations, Inc., 567 U.S. 239, 253 (2012)

(applying

the

criminal

law’s

fair-notice

requirements to an agency’s civil-enforcement

action). This means that due process prohibits

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courts from “unforeseeably and retroactively”

expanding otherwise “narrow and precise statutory

language.” Bouie v. City of Columbia, 378 U.S. 347,

352 (1964). When a statute is “narrow and precise

. . . it lulls the potential defendant into a false sense

of security, giving him no reason even to suspect that

conduct clearly outside the scope of the statute as

written will be retroactively brought within it by an

act of judicial construction.” Id.

While the VPPA is a civil statute, its statutorydamages provision is “essentially penal” even

though “the penalty . . . is to be enforced by a private

and not a public suit.” St. Louis, I.M. & S. Ry. Co. v.

Williams, 251 U.S. 63, 66 (1919). Statutes like the

VPPA must still provide fair notice to potential

defendants of what is unlawful because “the

standards of due process” do not turn on “the simple

label [Congress] chooses to fasten upon . . . its

statute.” See Giaccio v. Pennsylvania, 382 U.S. 399,

402 (1966).

As the Petition explains, the statute’s text limits

VPPA coverage to consumers who subscribe to or

purchase audiovisual goods and services. It does not

apply to consumers who purchase non-video goods or

services (like products from a retailer’s website) and

separately view free videos (like product

demonstrations or other multimedia visual content)

on the same website. See Pet. 25–26. As described,

Congress has never amended the “narrow and

precise” definition of consumer. Bouie, 378 U.S. at

352. Accordingly, Congress neither intended the

VPPA to serve as a comprehensive privacy law nor

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could have envisioned that the law would regulate

online advertising.

The Second Circuit’s expansive view of who

qualifies as a “consumer” creates the potential for

unforeseen liability. Plaintiffs seeking to exploit

that broad reading could threaten retailers’ dueprocess rights. No retailer, publisher, or advertiser

of ordinary intelligence would know that the

pervasive use of targeted advertising (supported by

data-tracking technology) coupled with multimedia

video website content, could violate a 1980s videocassette-rental privacy statute. Retailers deserve

fair notice to conform their advertising practices to

the law before being subjected to $2,500 in potential

statutory penalties per VPPA violation. Denying

certiorari would allow plaintiffs and plaintiffs’

attorneys to forum shop for multi-million-dollar

resolutions on “an ad hoc and subjective basis.”

Butcher v. Knudsen, 38 F.4th 1163, 1168–69 (9th

Cir. 2022).

CONCLUSION

The Court should grant certiorari to resolve the

circuit split outlined in the Petition, to correct the

Second Circuit’s error, and to ensure that retailers,

publishers, and advertisers can operate in an

environment where they have fair notice that their

advertising practices could be unlawful.

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Respectfully submitted,

Michael D. Meuti

Counsel of Record

BENESCH, FRIEDLANDER,

COPLAN & ARONOFF, LLP

127 Public Square, Ste. 4900

Cleveland, OH 44114

(216) 363-6246

mmeuti@beneschlaw.com

Attorneys for Amici Curiae

May 2, 2025

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