Hi CIPAWorld! The Baroness here and I have some news for you.
The Court just recently entered an order denying Colibri Group, LLC’s motion to dismiss and here’s why.
Tracey Damrau and Danielle Oshea, on behalf of a putative class filed a lawsuit against Colibri for purported violations of the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710.
According to the Complaint, Plaintiffs purchased subscriptions to view prerecorded videos on certain websites. The materials were for educational purposes.
After the purchase of the videos, Plaintiffs allege the websites transmitted certain information to Meta and Tiktok such as the titles of the subscriptions and product orders. The data was transmitted by the installation of pixels on the websites.
The information transmitted included Plaintiffs phone numbers and Facebook unique IDs.
Critically, Plaintiffs allege this all occurred without their consent.
Colibri moved to dismiss and made three arguments. First, the Plaintiffs sued the wrong defendant. Second, VPPA only applies to “entertainment” media not educational videos. And third, Plaintiffs fail to plead disclosure of personally identifiable information.
The Court was not persuaded.
The VPPA provides, “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).” 18 U.S.C. § 2710.
Wrong Defendant?
Parent company companies may be liable for their subsidiaries if they maintain sufficient control over the companies operating the websites.
The Court held control is often a fact intensive inquiry that cannot be resolved at the motion to dismiss phase. However, the Court stated the complaint contained sufficient allegations demonstrating that Colibri maintained control over the website. The allegations include:
- “Defendant maintains control over and governs the Websites by requiring that each website follow the same uniform policies,” and
- Disputes about “all matters concerning privacy” are “direct[ed]” to a single email location common to all websites under Colibri: privacy@colibrigroup.com. Compl. ¶¶ 37, 82.
Whether these allegations are true or not are issues for another day.
Not entertainment?
Next, Colibri argued because the videos were educational in nature, they did not fall qualify as a “video tape service provider”.
A “video tape service provider” is defined as “any person, engaged in the business…of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” § 2710(a)(4).
Do you see any limitations here?
Colibri argued this definition was only intended to encompass movies that are entertainment not educational and the legislative history supports this conclusion.
Focusing on the plain language of the text, the Court stated there is nowhere in the Act that differentiates between entertainment or educational videos. Further, the Court stated “When the Act was passed, brick-and-mortar video rental stores were common. Under the plain text, the Act protected information about all video rentals, regardless of whether a person rented James Bond or the documentary Nature.” – I thought this quote was pretty funny.
Personally identifiable information?
Lastly, Colibri argued that the information transmitted was not “personally identifiable information”.
Under the Act, “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.” § 2710(a)(3). Thus, two types of information must be disclosed for the Act to apply: 1) information that makes the person “identifiable,” and 2) specific information about the materials or services a consumer requested. Colibri attached both pieces.
First, Colibri argued that the transmission of phone numbers and unique Facebook IDs are not sufficient to identify a person. It is simply “gobbledygook”. The Court disagreed.
The Court held that the transmission of phone numbers and unique Facebook IDs are sufficient to identify a person.
Second, Colibri argued that only the purchase of a single video is covered under the Act, not the purchase of a set of materials. Again, the Court disagreed. The Court acknowledged the plain text of the state which says, “specific materials or services”, not “specific video titles.”
VPPA litigation is on the risk folks, so stay safe out there CIPAWorld and subscribe for more updates! 😊
Tracey Damrau v. Colibri Group, LLC, Case No.: 4:24-cv-01441-JMD, 2026 WL 183544 (E.D. Missouri Jan. 23, 2026).
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