In Yershov v. Gannett Satellite Information Network, Inc., a user of the free USA Today app alleged that each time he viewed a video clip, the app transmitted his mobile Android ID, GPS coordinates and identification of the watched video to a third-party analytics company to create user profiles for the purposes of targeted advertising, in violation of the Video Privacy Protection Act (VPPA). When we last wrote about this case in May, the First Circuit reversed the dismissal by the district court and allowed the case to proceed, taking a more generous view as to who is a “consumer” under the VPPA.

On remand, Gannett moved to dismiss the complaint again for lack of subject matter jurisdiction, contending that the complaint merely alleges a “bare procedural violation” of the VPPA, insufficient to establish Article III standing to bring suit under the standard enunciated in the Supreme Court’s Spokeo decision. In essence, Gannett contended that the complaint does not allege a concrete injury in fact, and that even if it did, the complaint depends on the “implausible” assumption that the third-party analytics company receiving the data maintains a “profile” on the plaintiff.