Antitrust Law Daily Wrap Up, PRIVACY—2d Cir.: Second Circuit affirms dismissal of VPPA claims over Facebook Pixel data, (Apr 27, 2026)

By Patricia K. Ruiz, J.D.

Court holds prior precedent forecloses video privacy claims based on transmission of encoded viewing data to Facebook

The U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action alleging violations of the Video Privacy Protection Act (VPPA), holding that the claims were foreclosed by binding circuit precedent. The court concluded that information transmitted through a Facebook Pixel embedded on NBCUniversal’s Today.com website did not constitute “personally identifiable information” under the statute. The court also rejected the plaintiff’s argument that intervening Supreme Court decisions undermined the controlling precedent, finding no conflict that would permit departure from prior circuit law (Golden v. NBCUniversal Media, No. 25-2226 (2d Cir. Apr. 23, 2026)).

Background. The appeal arose from a September 3, 2025, opinion of the U.S. District Court for the Southern District of New York dismissing a Fourth Amended Complaint brought by Sherhonda Golden against NBCUniversal Media LLC. Golden alleged that NBC violated the VPPA by knowingly disclosing information about her video-viewing activity to third parties without consent. Specifically, she claimed that NBC embedded a Facebook Pixel on Today.com that transmitted to Facebook both a unique Facebook identification number associated with her account and information about specific videos she viewed on the site.

The district court dismissed the complaint for failure to state a claim, relying on the Second Circuit’s earlier decision in Solomon v. Flipps Media, Inc., which addressed materially similar allegations. In Solomon, the court held that data transmitted via the Facebook Pixel did not qualify as “personally identifiable information” within the meaning of the VPPA. Golden appealed, contending that the district court erred by treating Solomon as dispositive.

Appeal. On appeal, the court reviewed the dismissal de novo. The court reiterated that the VPPA imposes liability on a “video tape service provider” that knowingly discloses “personally identifiable information” concerning a consumer. The statute defines that term as information identifying a person as having requested or obtained specific video materials or services. The court explained that Solomon established an “ordinary person” test for determining whether information constitutes personally identifiable information under the VPPA. Under that standard, information qualifies only if it would allow an ordinary person, with little or no extra effort, to identify a consumer’s video-viewing habits. The court emphasized that this approach aligns liability with what the disclosing party knowingly reveals, rather than with what a technologically sophisticated recipient might infer from the data.

Solomon. Applying that test in Solomon, the court previously held that a Facebook Pixel transmission consisting of a URL reflecting video content and a unique identifier tied to a Facebook profile was not personally identifiable information. The court reasoned that an ordinary person could not use the encoded data alone to identify an individual’s video-viewing activity. In the present case, the court found that Golden’s allegations were “materially indistinguishable” from those at issue in Solomon. The court stated that the district court correctly determined that Solomon compelled dismissal of the VPPA claims and noted that Golden did not dispute the factual similarity between the two cases.

Golden instead argued that Solomon was no longer binding because of intervening Supreme Court decisions issued in 2025 and 2026. She cited decisions addressing statutory interpretation in other contexts, contending that they required a different analysis of the VPPA. The court rejected that argument, reiterating the rule that a panel is bound by prior circuit precedent unless it is overruled by the Supreme Court or by the circuit sitting en banc. The court acknowledged a narrow exception allowing departure from precedent when an intervening Supreme Court decision creates a conflict or inconsistency that “breaks the link” on which the earlier decision rested.

No conflict with precedent. After reviewing the cases cited by Golden, the court concluded that none created a conflict with Solomon. The court explained that the cited Supreme Court decisions involved different statutes and addressed situations where courts of appeals had added requirements not found in statutory text. According to the court, those decisions reaffirmed established interpretive principles rather than announcing new rules incompatible with Solomon. The court further stated that Solomon applied the same text-centered approach endorsed by the Supreme Court decisions and that none addressed the VPPA or altered the statutory analysis underlying the prior circuit ruling. As a result, Golden had not shown circumstances that would permit the panel to depart from binding precedent.

Because Solomon remained controlling law in the Second Circuit and Golden’s allegations mirrored those previously rejected, the court held that the district court properly dismissed the complaint. The court therefore affirmed the judgment in full.

The Case is No. 25-2226.

Attorneys: Joshua Hammack (Bailey & Glasser, LLP) for Sherhonda Golden. Benjamin Thomassen (Zwillgen PLLC) for NBCUniversal Media, LLC.

Companies: NBCUniversal Media, LLC

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