Case 1:20-cv-11608 Document 1 Filed 08/27/20 Page 1 of 25

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

HEATHER W. CARBONE, individually and CASE NO. ____________

on behalf of all others similarly situated,

Plaintiff, CLASS ACTION COMPLAINT

v.
(JURY TRIAL DEMANDED)
BEACHBODY, LLC,

Defendant.

On behalf of herself and all others similarly situated, Plaintiff Heather W. Carbone

complains and alleges as follows based on personal knowledge as to herself, the investigation of

her counsel, and information and belief as to all other matters, and demands trial by jury. Plaintiff

believes that substantial evidentiary support will exist for the allegations in this complaint, after a

reasonable opportunity for discovery.

NATURE OF THE CASE

1. To supplement its revenues, Defendant Beachbody, LLC (hereinafter,

“Defendant”), sells, rents, transmits, and/or otherwise discloses, to various third parties, records

containing the personal information (including names and addresses) of each of its customers,

along with detailed transactional information revealing the titles and subject matter of the DVD

videos and other audiovisual materials purchased by each customer (collectively “Personal

Viewing Information”). After Defendant discloses its customers’ Personal Viewing Information,

the various third-party recipients of this data then append to it a myriad of other categories of

personal and demographic data pertaining to those customers, only to then re-sell that Personal

Viewing Information (enhanced with the appended demographic information) to other third parties

on the open market.

2. Plaintiff brings this action for legal and equitable remedies to redress and put a stop

to Defendant’s practices of intentionally disclosing its customers’ Personal Viewing Information

in knowing violation of the federal Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710.

CLASS ACTION COMPLAINT

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3. The VPPA clearly prohibits what Defendant has done. Subsection (b)(1) of the

VPPA provides that, absent the consumer’s prior informed, written consent, any “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,” 18 U.S.C.

§ 2710(b)(1), inter alia, liquidated damages in the amount of $2,500.00 per violation and equitable

relief, see id. § 2710(c).

4. Thus, while Defendant profits handsomely from its unauthorized sale, rental,

transmission, and/or disclosure of its customers’ Personal Viewing Information, it does so at the

expense of its customers’ privacy and their statutory rights under the VPPA because Defendant

discloses its customers’ Personal Viewing Information to third parties without providing prior

notice to or obtaining the requisite consent from any of these customers.

5. Defendant’s practice of disclosing its customers’ Personal Viewing Information in

violation of the VPPA has invaded Plaintiff’s and the other unnamed Class members’ privacy and

resulted in a barrage of unwanted junk mail to their home addresses and e-mail inboxes.

Defendant’s disclosures are also dangerous because they allow for the targeting of particularly

vulnerable members of society. For example, as a result of Defendant’s disclosures of Personal

Viewing Information, any person or entity could buy a list with the names and addresses of all

women over the age of 40 who reside in Florida and have purchased the DVD titled "Yoga Booty

Ballet" from Defendant during the past 12 months. Such a list is available for sale for

approximately $110.00 per thousand customers listed.

6. In an era when the collection and monetization of consumer data proliferates on an

unprecedented scale, it’s important that companies are held accountable for the exploitation of

their customers’ sensitive information. Defendant chose to disregard Plaintiff’s and thousands of

other consumers’ statutorily protected privacy rights by releasing their sensitive data into the data-

aggregation and brokerage marketplace. Accordingly, on behalf of herself and the putative Class

defined below, Plaintiff brings this Complaint against Defendant for intentionally and unlawfully

disclosing her Personal Viewing Information, en masse, in violation of the VPPA.

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JURISDICTION AND VENUE

7. The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C.

§ 1331 and 18 U.S.C. § 2710.

8. Personal jurisdiction and venue are proper because Plaintiff resides in

Massachusetts and within this District; because Defendant transacted with Plaintiff in this District

and regularly enters into transactions with consumers in Massachusetts and within this District;

and because a substantial part of the unlawful conduct giving rise to Plaintiff’s claims occurred in,

was directed to, and/or emanated from within Massachusetts and this District.
PARTIES

9. Plaintiff is, and at all times alleged herein was, a natural person and citizen of

Winchester, Massachusetts. During the relevant time period, including the two years preceding

the filing of this action, Plaintiff purchased videos in DVD format, including the title “Brazil Butt

Lift,” from Defendant.

10. Defendant is a Delaware corporation with its principal place of business in Santa

Monica, California. Defendant does business throughout Massachusetts and across the United

States. Defendant is a creator and direct marketer of exercise and workout video products,

including DVDs, which Defendant sells to consumers on its website, over the phone in connection

with infomercials, and through postal mail, among other direct retail sales channels. The videos

created and sold by Defendant in DVD format include such widely known workout program titles

as P90X, Brazilian Butt Lift, and Yoga Booty Ballet, and 21 Day Fix Extreme.

VIDEO PRIVACY PROTECTION ACT

11. In 1988, leading up to the VPPA’s enactment, members of the United States Senate

warned that “[e]very day Americans are forced to provide to businesses and others personal

information without having any control over where that information goes.” Id. Senators at the

time were particularly troubled by disclosures of records that reveal consumers’ purchases and

rentals of videos and other audiovisual materials. As Senator Patrick Leahy and the late Senator

Paul Simon recognized, records of this nature offer “a window into our loves, likes, and dislikes,”

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such that “the trail of information generated by every transaction that is now recorded and stored

in sophisticated record-keeping systems is a new, more subtle and pervasive form of surveillance.”

S. Rep. No. 100-599 at 7-8 (1988) (statements of Sens. Simon and Leahy, respectively).

12. In proposing the Video and Library Privacy Protection Act (later codified as the

VPPA), Senator Leahy stated that “[i]n practical terms our right to privacy protects the choice of

movies that we watch with our family in our own homes. And it protects the selection of books

that we choose to read.” 134 Cong. Rec. S5399 (May 10, 1988). Thus, the personal nature of such

information, and the need to protect it from disclosure, is the raison d’être of the statute: “These

activities are at the core of any definition of personhood. They reveal our likes and dislikes, our

interests and our whims. They say a great deal about our dreams and ambitions, our fears and our

hopes. They reflect our individuality, and they describe us as people.” Id.

13. While these statements rang true in 1988 when the act was passed, the importance

of legislation like the VPPA in the modern era of data mining is more pronounced than ever before.

During a recent Senate Judiciary Committee meeting, “The Video Privacy Protection Act:

Protecting Viewer Privacy in the 21st Century,” Senator Leahy emphasized the point by stating:

“While it is true that technology has changed over the years, we must stay faithful to our

fundamental right to privacy and freedom. Today, social networking, video streaming, the ‘cloud,’

mobile apps and other new technologies have revolutionized the availability of Americans’

information.” 1

14. One former senator may have summarized it best: “If someone wants to share what

they watch, I want them to be able to do so . . . But I want to make sure that consumers have the

right to easily control who finds out what they watch—and who doesn’t. The Video Privacy

Protection Act guarantees them that right.” 2

1
The Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century, Senate
Judiciary Committee Subcommittee on Privacy, Technology and the Law, http://www.judiciary.
senate.gov/meetings/the-video-privacy-protection-act-protecting-viewer-privacy-in-the-
21stcentury.
2
Chairman Franken Holds Hearing on Updated Video Privacy Law for 21st Century,

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15. In this case, however, Defendant chose to deprive Plaintiff and the unnamed Class

members of that right by systematically disclosing their Personal Viewing Information to various

third parties, without providing notice to (let alone obtaining consent from) anyone, as explained

in detail below.

BACKGROUND FACTS

I. Consumers’ Personal Information Has Real Market Value

16. In 2001, Federal Trade Commission (“FTC”) Commissioner Orson Swindle

remarked that “the digital revolution . . . has given an enormous capacity to the acts of collecting

and transmitting and flowing of information, unlike anything we’ve ever seen in our lifetimes . . .

[and] individuals are concerned about being defined by the existing data on themselves.” 3
17. More than a decade later, Commissioner Swindle’s comments ring truer than ever,

as consumer data feeds an information marketplace that supports a $26 billion dollar per year

online advertising industry in the United States. 4

18. The FTC has also recognized that consumer data possesses inherent monetary value

within the new information marketplace and publicly stated that:

Most consumers cannot begin to comprehend the types and amount

of information collected by businesses, or why their information
may be commercially valuable. Data is currency. The larger the data
set, the greater potential for analysis – and profit. 5
19. In fact, an entire industry exists while companies known as data aggregators

purchase, trade, and collect massive databases of information about consumers. Data aggregators

frank.senate.gov (Jan. 31, 2012).

3
FCC, The Information Marketplace (Mar. 13, 2001), at 8-11, available at
https://www.ftc.gov/sites/default/files/documents/public_events/information-marketplace-
merging-and-exchanging-consumer-data/transcript.pdf.
4
See Web’s Hot New Commodity: Privacy, Wall Street Journal (Feb. 28, 2011),
http://online.wsj.com/article/SB10001424052748703529004576160764037920274.html (last
visited May 13, 2019).
5
Statement of FTC Cmr. Harbour (Dec. 7, 2009), at 2, available at
https://www.ftc.gov/sites/default/files/documents/public_statements/remarks-ftc-exploring-
privacy-roundtable/091207privacyroundtable.pdf.

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then profit by selling this “extraordinarily intrusive” information in an open and largely

unregulated market. 6

20. The scope of data aggregators’ knowledge about consumers is immense: “If you

are an American adult, the odds are that [they] know[] things like your age, race, sex, weight,

height, marital status, education level, politics, buying habits, household health worries, vacation

dreams—and on and on.” 7

21. Further, “[a]s use of the Internet has grown, the data broker industry has already

evolved to take advantage of the increasingly specific pieces of information about consumers that

are now available.” 8

22. Recognizing the serious threat the data mining industry poses to consumers’

privacy, on July 25, 2012, the co-Chairmen of the Congressional Bi-Partisan Privacy Caucus sent

a letter to nine major data brokerage companies seeking information on how those companies

collect, store, and sell their massive collections of consumer data, stating in pertinent part:

By combining data from numerous offline and online sources, data

brokers have developed hidden dossiers on every U.S. consumer.
This large[-]scale aggregation of the personal information of
hundreds of millions of American citizens raises a number of serious
privacy concerns. 9

6
See M. White, Big Data Knows What You’re Doing Right Now, TIME.com (July 31, 2012),
http://moneyland.time.com/2012/07/31/big-data-knows-what-youre-doing-right-now/ (last visited
May 13, 2019).
7
N. Singer, You for Sale: Mapping, and Sharing, the Consumer Genome, N.Y. Times (June
16, 2012), available at http://www.nytimes.com/2012/06/17/technology/acxiom-the-quiet-giant-
of- consumer-database-marketing.html (last visited May 13, 2019).
8
Letter from Sen. J. Rockefeller IV, Sen. Cmtee. on Commerce, Science, and
Transportation, to S. Howe, Chief Executive Officer, Acxiom (Oct. 9, 2012) available at
http://www.commerce.senate.gov/public/?a=Files.Serve&File_id=3bb94703-5ac8-4157-a97b-
a658c3c3061c.
9
See Bipartisan Group of Lawmakers Query Data Brokers About Practices Involving
Consumers’ Personal Information, Website of Sen. Markey (July 24, 2012),
http://www.markey.senate.gov/news/press-releases/bipartisan-group-of-lawmakers-query-data-
brokers-about-practices-involving-consumers-personal-information.

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23. Data aggregation is especially troublesome when consumer information is sold to

direct-mail advertisers. In addition to causing waste and inconvenience, direct-mail advertisers

often use consumer information to lure unsuspecting consumers into various scams, 10 including

fraudulent sweepstakes, charities, and buying clubs. Thus, when companies like Defendant share

information with data aggregators, data cooperatives, and direct-mail advertisers, they contribute

to the “[v]ast databases of names and personal information” that are often “sold to thieves by large

publicly traded companies,” which “put[s] almost anyone within the reach of fraudulent

telemarketers” and other criminals. 11

24. Disclosures like Defendant’s are particularly dangerous to the elderly. “Older

Americans are perfect telemarketing customers, analysts say, because they are often at home, rely

on delivery services, and are lonely for the companionship that telephone callers provide.” 12 The
FTC notes that “[t]she elderly often are the deliberate targets of fraudulent telemarketers who take

advantage of the fact that many older people have cash reserves or other assets to spend on

seemingly attractive offers.” 13

25. Indeed, an entire black market exists while the personal information of vulnerable

elderly Americans is exchanged. Thus, information disclosures like Defendant’s are particularly

troublesome because of their cascading nature: “Once marked as receptive to [a specific] type of

spam, a consumer is often bombarded with similar fraudulent offers from a host of scam artists.” 14

10
See Prize Scams, Federal Trade Commission, http://www.consumer.ftc.gov/articles/0199-
prize-scams (last visited May 13, 2019).
11
C. Duhigg, Bilking the Elderly, With a Corporate Assist, N.Y. Times (May 20, 2007),
available at http://www.nytimes.com/2007/05/20/business/20tele.html (last visited May 13,
2019).
12
Id.
13
Fraud Against Seniors: Hearing before the Senate Special Committee on Aging (August
10, 2000) (prepared statement of the FTC), available at
https://www.ftc.gov/sites/default/files/documents/public_statements/prepared-statement-federal-
trade-commission-fraud-against-seniors/agingtestimony.pdf.
14
Id.

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26. Defendant is not alone in violating its customers’ statutory rights and jeopardizing

their well-being in exchange for increased revenue: disclosing customer and subscriber

information to data aggregators, data appenders, data cooperatives, direct marketers, and other

third parties is a widespread practice in publishing industries. Unfortunately for consumers,

however, this growth has come at the expense of their most basic privacy rights.

II. Consumers Place Monetary Value on their Privacy and Consider Privacy
Practices When Making Purchases
27. As the data aggregation and cooperative industry has grown, so too have consumer

concerns regarding their personal information.

28. A recent survey conducted by Harris Interactive on behalf of TRUSTe, Inc. showed

that 89 percent of consumers polled avoid doing business with companies who they believe do not

protect their privacy online. 15 As a result, 81 percent of smartphone users polled said that they
avoid using smartphone apps that they don’t believe protect their privacy online. 16

29. Thus, as consumer privacy concerns grow, consumers are increasingly

incorporating privacy concerns and values into their purchasing decisions and companies viewed

as having weaker privacy protections are forced to offer greater value elsewhere (through better

quality and/or lower prices) than their privacy- protective competitors.

30. In fact, consumers’ personal information has become such a valuable commodity

that companies are beginning to offer individuals the opportunity to sell their personal information

themselves. 17

31. These companies’ business models capitalize on a fundamental tenet underlying

the personal information marketplace: consumers recognize the economic value of their private

15
See 2014 TRUSTe US Consumer Confidence Privacy Report, TRUSTe,
http://www.theagitator.net/wp-content/uploads/012714_ConsumerConfidenceReport_US1.pdf
(last visited May 13, 2019).
16
Id.
17
See Joshua Brustein, Start-Ups Seek to Help Users Put a Price on Their Personal Data,
N.Y. Times (Feb. 12, 2012), available at http://www.nytimes.com/2012/02/13/technology/start-
ups-aim-to-help-users-put-a-price-on-their-personal-data.html (last visited May 13, 2019).

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data. Research shows that consumers are willing to pay a premium to purchase services from

companies that adhere to more stringent policies of protecting their personal data. 18

32. Thus, in today’s digital economy, individuals and businesses alike place a real,

quantifiable value on consumer data and corresponding privacy rights. 19 As such, while a business

offers customers a service that includes statutorily guaranteed privacy protections, yet fails to

honor these guarantees, the customer receives a service of less value than the service paid for.

III. Defendant Unlawfully Sells, Rents, Transmits, And Otherwise Discloses Its
Customers’ Personal Viewing Information
33. Defendant maintains a vast digital database comprised of its customers’ Personal

Viewing Information, including the names and addresses of each customer and information

reflecting the titles of all video and other audio-visual products that each of its customers have

purchased.

34. During the time period relevant to this action, Defendant has monetized this

database by renting, selling, or otherwise disclosing its customers’ Personal Viewing Information

to data aggregators, data miners, data brokers, data appenders, and other third parties.

35. These factual allegations are corroborated by publicly available evidence. For

instance, as shown in the screenshot below, the Personal Viewing Information of 216,098

American consumers who purchased Defendant’s video products is offered for sale on the website

of Multimedia Lists, Inc. (“MML”) – one of many traffickers of this type of Personal Viewing

Information – at a base price of “$90.00/M [per thousand records]” (9 cents each):

18
See Tsai, Cranor, Acquisti, and Egelman, The Effect of Online Privacy Information on
Purchasing Behavior, 22(2) Information Systems Research 254, 254 (2011); see also European
Network and Information Security Agency, Study on monetising privacy (Feb. 27, 2012), available
at https://www.enisa.europa.eu/activities/identity-and-trust/library/deliverables/monetising-
privacy (last visited May 13, 2019).
19
See Hann, et al., The Value of Online Information Privacy: An Empirical Investigation
(Oct. 2003) at 2, available at
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.321.6125&rep=rep1&type=pdf (last
visited May 13, 2019) (“It is obvious that people value online privacy.”).

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See Exhibit A hereto.

36. The “BRAZIL BUTT LIFT TV INFOMERCIAL BUYER” list offered for sale by

MML, shown in the screenshot above, contains Personal Viewing Information for each of the

216,098 American consumers whose information appears on the list, including each person’s

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name, postal address, age, and gender, as well as the particular exercise or workout video

product(s) they purchased from Defendant (i.e., the titles of the DVDs purchased).

37. As a result of Defendant’s data compiling and sharing practices, companies have

obtained and continue to obtain the Personal Viewing Information of Defendant’s customers,

together with additional sensitive personal information that has been appended thereto by data

appenders and others.

38. Plaintiff is informed and believes, and thereupon alleges, that numerous of the third

parties to whom Defendant has transmitted and/or otherwise disclosed its customers’ Personal

Viewing Information, either directly or indirectly through an intermediary or intermediaries, have

in turn sold, rented, transmitted, or otherwise disclosed that Personal Viewing Information

(together with other sensitive personal demographic and lifestyle information appended thereto by

data appenders and other entities) to other third parties, including other data brokers, data miners,

data appenders, and marketing companies.

39. Defendant’s disclosures of Personal Viewing Information have put its customers at

risk of serious harm from scammers. For example, as a result of Defendant’s disclosures of

Personal Viewing Information, any person or entity could obtain a list with the names and

addresses of all women over the age of 40 who reside in Florida and have purchased the DVD

titled "Yoga Booty Ballet" from Defendant during the past 12 months. Such a list is available for

sale for approximately $110.00 per thousand customers listed.

40. Defendant does not seek its customers’ prior written consent to the disclosure of

their Personal Viewing Information (in writing or otherwise) and its customers remain unaware

that their Personal Viewing Information and other sensitive data is being sold, rented and

exchanged on the open market.

41. By disclosing its customers’ names, addresses, and detailed video purchase

information – which can collectively “reveal intimate facts about our lives” 20 – Defendant has

20
California’s Reader Privacy Act Signed into Law, EFF (Oct. 3, 2011),
https://www.eff.org/press/archives/2011/10/03 (last visited May 14, 2019).

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intentionally and knowingly disclosed its customers’ Personal Viewing Information to third parties

without their informed written consent, in direct violation of the VPPA.

PLAINTIFF’S EXPERIENCE

42. Plaintiff Heather W. Carbone has, during the past 24 months, purchased videos in

DVD format, including “Brazil Butt Lift,” directly from Defendant via a toll-free telephone hotline

used in connection with its informercials.

43. Prior to and at the time she purchased videos in DVD format from Defendant via a

toll-free telephone hotline used in connection with its informercials, Defendant did not notify

Plaintiff that it would disclose the Personal Viewing Information of its customers generally or of

Plaintiff in particular, and Plaintiff has never consented, agreed, authorized, or otherwise permitted

Defendant to disclose her Personal Viewing Information to third parties. Plaintiff has never been

provided any written notice that Defendant sells, rents, licenses, exchanges, or otherwise discloses

its customers’ Personal Viewing Information, or any means of opting out of such disclosures of

her Personal Viewing Information.

44. Defendant nonetheless sold, rented, transmitted and/or otherwise disclosed, either

directly or through an intermediary or intermediaries, Plaintiff’s Personal Viewing Information –

including, inter alia, Plaintiff’s name, postal address, age, and gender, as well as the particular

exercise or workout video product(s) Plaintiff purchased from Defendant (i.e., the titles of the

DVDs purchased) – to data miners, data appenders, data aggregators, marketing companies, and/or

other third parties, including without limitation MML, during the relevant time period.

45. Plaintiff is informed and believes, and thereupon alleges, that third parties to whom

Defendant transmitted and/or otherwise disclosed her Personal Viewing Information, including

without limitation MML, have in turn sold, rented, transmitted, and otherwise disclosed her

Personal Viewing Information (together with other sensitive personal demographic and lifestyle

information appended thereto by data appenders and other entities) to other third parties, including

but not limited to other data brokers, data miners, data appenders, and marketing companies.

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46. As a result of Defendant’s sales, rentals, transmissions, and/or other disclosures of

Plaintiff’s Personal Viewing Information to third parties, Plaintiff now receives junk mail from

various companies and other organizations that do not offer products or services through the mail.

These unwarranted and harassing junk mailings, which are attributable to Defendant’s

unauthorized sale, rental, and/or other disclosure of her Personal Viewing Information, have

wasted Plaintiff’s time, money, and resources.

47. Because Plaintiff is entitled by law to privacy in her Personal Viewing Information,

and paid money for the videos she purchased from Defendant, Defendant’s disclosure of her

Personal Viewing Information deprived Plaintiff of the full set of benefits to which she was entitled

as a part of her purchases, thereby causing her economic harm. Accordingly, what Plaintiff

received (videos without statutory privacy protections) was less valuable than what she paid for

(videos with statutory privacy protections), and she would not have been willing to pay as much,

if at all, for the videos she purchased from Defendant had she known that Defendant would disclose

her Personal Viewing Information. Plaintiff did not discover that Defendant sold, rented,

transmitted, and/or otherwise disclosed her Personal Viewing Information until August 2020.
CLASS ACTION ALLEGATIONS

48. Plaintiff brings this action pursuant to Federal Rules of Civil Procedure 23(a),

(b)(2), and (b)(3) on behalf of herself and a class of similarly situated residents (the “Class”),

defined as follows:

All persons in the United States who, at any time during the
applicable statutory period, had their Personal Viewing Information
disclosed to a third party by Defendant.

49. Excluded from the Class is any entity in which Defendant has a controlling interest,

and officers or directors of Defendant.

50. Members of the Class are so numerous that their individual joinder herein is

impracticable, as they number, on information and belief, in the hundreds of thousands. The

precise number of members of the Class and their identities are unknown to Plaintiff at this time,

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but such information may readily be determined through discovery. Members of the Class may

be notified of the pendency of this action by mail and/or publication through the distribution

records of Defendant.

51. Common questions of law and fact exist as to all members of the Class and

predominate over questions affecting only individual members of the Class. Common legal and

factual questions include, but are not limited to: (1) whether Defendant unlawfully disclosed and

continues to unlawfully disclose Plaintiff’s and the Class’s Personal Viewing Information in

violation of the VPPA; (2) whether Defendant’s disclosures were committed knowingly; (3)

whether Defendant obtained the requisite consent before disclosing Plaintiff’s and the Class’s

Personal Viewing Information; (4) whether Defendant was unjustly enriched by its disclosures of

Plaintiff’s and the Class’s Personal Viewing Information; and (5) whether Defendant violated

Plaintiff’s and the Class’s rights to privacy.

52. The claim of the named Plaintiff is typical of the claims of the Class in that the

Plaintiff, like all unnamed Class members, sustained damages as a result of Defendant’s uniform

wrongful conduct in disclosing her Personal Viewing Information.

53. Plaintiff is an adequate representative of the Class because her interests do not

conflict with the interests of the members of the Class she seeks to represent, she has retained

competent counsel experienced in prosecuting class actions, and she intends to prosecute this

action vigorously. The interests of the members of the Class will be fairly and adequately protected

by Plaintiff and her counsel.

54. The class mechanism is superior to other available means for the fair and efficient

adjudication of the claims of the members of the Class. Individual members of the Class may lack

the resources to undergo the burden and expense of individual prosecution of the complex and

extensive litigation necessary to establish Defendant’s liability. Individualized litigation increases

the delay and expense to all parties and multiplies the burden on the judicial system presented by

the complex legal and factual issues of this case. Individualized litigation also presents a potential

for inconsistent or contradictory judgments. In contrast, the class action device presents far fewer

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management difficulties and provides the benefits of single adjudication, economy of scale, and

comprehensive supervision by a single court on the issue of Defendant’s liability. Class treatment

of the liability issues will ensure that all claims and claimants are before this Court for consistent

adjudication of the liability issues.

FIRST COUNT
VIOLATION OF THE VPPA (18 U.S.C. § 2710)
(Brought by Plaintiff Individually and
on Behalf of the Class Against Defendant)
55. Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set

forth herein.

56. Defendant is a “video tape service provider as defined by the VPPA because it

“engage[s] in the business, in or affecting interstate or foreign commerce, of rental, sale, or

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

2710(a)(4), inasmuch as it sells and delivers prerecorded exercise and workout videos and other

multimedia titles, including videos in DVD format (i.e., “similar audio visual materials” under the

VPPA’s definition), to consumers across the United States, including via a toll-free telephone

hotline used in connection with its informercials.

57. The videos in DVD format sold by Defendant and purchased by Plaintiff and the

Class members constitute “audio visual materials” that are “similar” to “prerecorded video cassette

tapes” within the meaning of 18 U.S.C. § 2710(a)(4).

58. Plaintiff is a “consumer” as defined by the VPPA because she “purchase[d] . . .

goods,” i.e., prerecorded videos in DVD format, “from [Defendant,] a video tape service provider,”

18 U.S.C. § 2710(a)(1), during the 24-month period preceding the filing of this action.

59. At various times relevant to this action, including subsequent to Plaintiff’s purchase

of videos in DVD format from Defendant within the preceding 24-month period, Defendant

disclosed Plaintiff’s Personal Viewing Information, including Plaintiff’s name, postal address, age,

and gender, as well as the particular exercise or workout video product(s) Plaintiff purchased from

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CLASS ACTION COMPLAINT
 Case 1:20-cv-11608 Document 1 Filed 08/27/20 Page 16 of 25

Defendant (i.e., the titles of the DVDs purchased), to various third parties, including data

aggregators, data appenders, and marketing companies, including without limitation MML.

60. Defendant’s disclosures of Plaintiff’s Personal Viewing Information to third

parties, including without limitation to MML, constituted “knowing[] disclosures” of “personal

identifiable information concerning [Plaintiff]” to a person as proscribed by the VPPA. 18 U.S.C.

§ 2710(b)(1).

61. Plaintiff and the members of the Class never consented, in writing or otherwise,

expressly or otherwise, to Defendant disclosing their Personal Viewing Information to anyone.

Worse yet, Plaintiff and the members of the Class did not even receive notice before Defendant

disclosed their Personal Viewing Information to third parties.

62. Defendant’s disclosures of Plaintiff’s and the Class’s Personal Viewing

Information were not made pursuant to lawful compulsion. Nor were Defendant’s disclosures

made in the “ordinary course of business” as the term is defined by the VPPA. In particular,

Defendant’s disclosures were not necessary for “debt collection activities, order fulfillment,

request processing, [or] the transfer of ownership.” 18 U.S.C. § 2710(a)(2).

63. Defendant’s disclosures of Plaintiff’s and the Class’s Personal Viewing

Information were made to various third parties – including, but not limited to, data aggregators,

data appenders, data cooperatives, direct-mail advertisers, marketers, other third parties, and

anyone else willing to pay for it – in order to increase Defendant’s corporate revenues.

64. Plaintiff is informed and believe that third-party recipients of her Personal Viewing

Information, which was disclosed to them by Defendant, thereafter appended to Plaintiff’s

Personal Viewing Information additional categories of sensitive information from their own

databases and re-disclosed this “enhanced” Personal Viewing Information to other third parties,

including on behalf of Defendant. Because the lists of Personal Viewing Information disclosed by

Defendant and redisclosed by other downstream entities on its behalf included additional

information appended by data aggregators and appenders, these “enhanced” lists of Personal

Viewing Information were more valuable, and Defendant and the other third-party traffickers of

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CLASS ACTION COMPLAINT
 Case 1:20-cv-11608 Document 1 Filed 08/27/20 Page 17 of 25

such data were able to increase their profits gained from the rentals and/or exchanges of such lists,

including those containing Plaintiff’s and the Class’s Personal Viewing Information.

65. By disclosing Plaintiff’s and the Class’s Personal Viewing Information, Defendant

violated Plaintiff’s and the unnamed Class members’ statutorily protected right to privacy in their

video-watching habits. See 18 U.S.C. § 2710(c).

66. Defendant’s disclosures of Plaintiff’s Personal Viewing Information to third parties

has also caused an influx of third-party print advertisements and e-mail spam to her postal mailbox

and e-mail inbox.

67. Additionally, because Plaintiff and the members of the Class paid Defendant for

the videos they purchased from Defendant, and because Defendant was obligated to comply with

the VPPA, Defendant’s unlawful disclosure of Plaintiff’s and the other Class members’ Personal

Viewing Information deprived Plaintiff and the Class members of the full value of their paid-for

videos. Because Plaintiff and the other Class members ascribe monetary value to the privacy of

their Personal Viewing Information, Defendant’s unlawful sales, rentals, transmissions, and/or

other disclosures of their Personal Viewing Information caused them to receive less value than

they paid for, thereby causing them economic harm. Likewise, because Plaintiff and the other

Class members ascribe monetary value to the privacy of their Personal Viewing Information, a

purchase of videos from Defendant that includes privacy protections for their Personal Viewing

Information is more valuable than one that does not. Accordingly, had Plaintiff been adequately

informed of Defendant’s disclosure practices, she would not have been willing to purchase the

videos that she bought from Defendant at the prices charged, if at all. Thus, Defendant’s unlawful

disclosures caused Plaintiff economic harm.

68. As a result of Defendant’s unlawful disclosures of their Personal Viewing

Information, Plaintiff and the members of the Class have suffered privacy and economic injuries.

On behalf of herself and the Class, Plaintiff seeks: (1) an injunction requiring Defendant to obtain

consent from its customers prior to disclosing their Personal Viewing Information as required by

the VPPA, 18 U.S.C. § 2710(c)(2)(D); (2) $2,500.00 per violation of the VPPA to Plaintiff and

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CLASS ACTION COMPLAINT
 Case 1:20-cv-11608 Document 1 Filed 08/27/20 Page 18 of 25

Class members, and punitive damages in an amount to be determined at trial, id. § 2710(c)(2)(A)-

(B); and (3) costs and reasonable attorneys’ fees pursuant to the VPPA, id. § 2710(c)(2)(C).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Heather W. Carbone seeks a judgment against Defendant,

individually and on behalf of all others similarly situated, as follows:

A. For an order certifying the Class under Rule 23 of the Federal Rules of Civil

Procedure and naming Plaintiff as representative of the Class and Plaintiff’s attorneys as Class

Counsel to represent the Class;

B. For an order declaring that Defendant’s conduct as described herein violates the

federal VPPA, 18 U.S.C. § 2710(c)(2)(D);

C. For an order finding in favor of Plaintiff and the Class on all counts asserted herein;

D. For Defendant to pay $2,500.00 to Plaintiff and each Class member, as provided by

the VPPA, 18 U.S.C. § 2710(c)(2)(A);

E. For punitive damages, as warranted, in an amount to be determined at trial, 18

U.S.C. § 2710(c)(2)(B);

F. For prejudgment interest on all amounts awarded;

G. For an order of restitution and all other forms of equitable monetary relief;

H. For injunctive relief as pleaded or as the Court may deem proper; and

I. For an order awarding Plaintiff and the Class their reasonable attorneys’ fees and

expenses and costs of suit, 18 U.S.C. § 2710(c)(2)(C).

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CLASS ACTION COMPLAINT
 Case 1:20-cv-11608 Document 1 Filed 08/27/20 Page 19 of 25

DEMAND FOR JURY TRIAL

Plaintiff, on behalf of herself and the Class, hereby demands a trial by jury pursuant to

Federal Rule of Civil Procedure 38(b) on all claims so triable.

Dated: August 27, 2020 Respectfully submitted,

By: /s/ James J. Reardon, Jr.

James J. Reardon, Jr. (BBO #566161)

REARDON SCANLON LLP

JAMES J. REARDON, JR.
45 South Main Street, 3rd Floor
West Hartford, CT 06107
Telephone: (860) 955-9455
Facsimile: (860) 920-5242
Email: [email protected]

HEDIN HALL LLP

FRANK S. HEDIN*
1395 Brickell Ave, Suite 1140
Miami, Florida 33131
Telephone: (305) 357-2107
Facsimile: (305) 200-8801
E-Mail: [email protected]

HEDIN HALL LLP

DAVID W. HALL*
Four Embarcadero Center, Suite 1400
San Francisco, California 94104
Telephone: (415) 766-3534
Facsimile: (415) 402-0058
E-Mail: [email protected]

BURSOR & FISHER, P.A.

JOSEPH I. MARCHESE*
PHILIP L. FRAIETTA*
888 Seventh Avenue
New York, New York 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-Mail: [email protected]
[email protected]

* Pro Hac Vice Application Forthcoming

Counsel for Plaintiff and the Putative Class

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Case 1:20-cv-11608 Document 1 Filed 08/27/20 Page 20 of 25

EXHIBIT A
8/23/2020 Mailing Document
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EXHIBIT A
 800-239-LIST (5478)  [email protected]

U a

LIST SERVICES

OUR LISTS

Re ne search | New Search Print | Email

BRAZIL BUTT LIFT TV INFOMERCIAL BUYER
The secret is Leandro's proven TriAngle Training method, which works all

three major muscles of the buttocks from multiple angles.

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SEGMENTS PRICE ID NUMBER

NextMark 487119
216,098   TOTAL UNIVERSE / BASE RATE $90.00/M
Manager
14,085   Hotline Buyers + $10.00/M
UNIVERSE

216,098
DESCRIPTION
LIST TYPE
The secret is Leandro's proven TriAngle Training method, which
Consumer
works all three major muscles of the buttocks from multiple
 
angles to:
SOURCE

TV/Cable TV, TV generated, Direct response

SHAPE your gluteal muscles to get you that perfectly round
LIST MAINTENANCE
Brazilian "bum bum" LIFT your butt to look great from every
Counts through 08/10/2020
angle FIRM your butt and thighs, and melt away those stubborn
Last update 08/10/2020
saddlebags
Next update 09/15/2020

SELECTS
Leandro combines Brazilian dance, cardio, and signature lower-
Age 5.00/M
body sculpting moves to help you look divine from behind!
Hotline 10.00/M

SCF 5.00/M

CONTACT [email protected] FOR STATE 5.00/M

COUNTS OR USAGE. Zip 5.00/M

GEOGRAPHY

USA

UNIT OF SALE INFORMATION

Average: $19.95

MINIMUM ORDER

Quantity: 5,000

Dollar: $350

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NET NAME ARRANGEMENTS

Net Name is allowed.

Floor: 85%

Min Qty: 25,000

Run Charges: $ 6 /M

EXCHANGES

Exchange is not allowed

KEY CODING

Key Coding is not available

ADDRESSING

Email $50.00/F

FTP $50.00/F

CONTACTS    

NAME ROLE EMAIL PHONE FAX

Susan Weir [email protected] 706-300-6849 (928) 396-8492

= Primary contact

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46 Park Avenue North

Asheville, NC 28801-3113

Phone Number:
800-239-5478

Email:
[email protected]

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