CHICAGO - Streaming TV service Tubi can't escape a class action lawsuit accusing it of improperly sharing information about millions of users with advertisers and other third parties, potentially violating federal law, a federal judge has ruled.
The lawsuit was filed on behalf of named plaintiff Sylvia Campos, identified only as an Illinois resident who signed up for Tubi's service through an Android app in 2022.
The lawsuit accused Tubi of allegedly sharing Campos' personal identifying information (PII) with other companies, particularly to allow Tubi to tailor advertisements to her.
The PII was allegedly gleaned from information she provided when registering for the service, and from other sources, including GPS data and browsing history, according to the complaint.
The lawsuit asserts such sharing violates the federal Video Privacy Protection Act (VPPA), which generally prohibits such user information sharing without user consent.
The lawsuit seeks to expand the lawsuit to include every Tubi user who has registered for the service since June 2021, according to the complaint. The plaintiffs estimate this could include millions of users.
The lawsuit seeks unspecified damages, plus attorney fees.
The lawsuit was just one of dozens filed against online video service providers under the VPPA in courts in Chicago, California and elsewhere in 2023, as trial lawyers attempt to use the federal law to leverage potentially big paydays from streaming services and other companies hosting and sharing video content online.
Tubi has also been similarly directly targeted in other lawsuits filed in California courts.
Other targets of such VPPA-related class actions have included NFL.com, Fubo TV, Buzzfeed, Warner Bros. and others.
The litigation has met with mixed results to this point, with some judges unplugging the suits relatively quickly, while other lawsuits have been allowed to proceed, in part, based on the specifics of each companies service, user agreements and other case-specific details.
The judge first rejected Tubi's assertion that a clause embedded within its user agreement should force users to take any claims against Tubi to individual arbitration, rather than a potentially massive class action lawsuit in court.
In the ruling, Tharp conceded that Tubi includes such an otherwise enforceable clause in its user terms of service. And the judge agreed that Campos and other users likely agreed to such service terms when they registered for the service.
But the judge said Tubi's website doesn't make it clear to users that they are agreeing to such an arbitration provision, nor any other terms of service, when they click a button on the site that Tubi claimed affirms their assent.
The judge said Tubi's registration process is different enough from those of other similar online services to allow plaintiffs to realistically claim they had no warning that they were agreeing to anything when they clicked a particular button on Tubi's site.
"Here, the problem is that the warning is divorced from the act of assent, making it unlikely that a prospective user like Campos would receive the warning before performing the act of consent," Tharp wrote.
For that reason, the judge said, Tubi can't use the arbitration agreement provision to kick Campos' lawsuit out of court.
Tharp further rejected Tubi's attempt to dismiss the lawsuit on grounds that Campos failed to state a claim under the VPPA.
In his ruling, Tharp pointed to language provided by Tubi in a privacy notice the company posted on its own site, warning users that it may share their information with advertisers to better tailor ads, based on their demonstrated tastes and other identifying information.
Tharp said that privacy policy disclosure, in combination with other factors, are enough to force Tubi to defend against Campos' claims.
"Campos does not need a 'smoking gun' in her complaint," Tharp wrote. "The relevant pieces of circumstantial evidence, such as Tubi’s own words saying that it might engage in various aspects of the accused conduct, in conjunction with the other factual allegations about Tubi’s practices, its emphasis on hyper-specific ad targeting, and business model - some supported by suggestive documentary evidence - are sufficient to support the plausibility of Campos’s claim."
Plaintiffs are represented by attorneys Eugene Y. Turin and Jordan R. Frysinger, of McGuire Law, of Chicago.
Tubi has been defended by attorneys David C. Layden and Andrianna D. Kastanek, of Jenner & Block, of Chicago.