from the United States District Court for the Northern
District of Georgia
WILSON and BLACK, Circuit Judges, and RESTANI, [*] Judge.
Ryan Perry ("Perry") appeals the district
court's dismissal of his complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). The district court held
that Perry failed to state a claim under the Video Privacy
Protection Act ("VPPA") both because Perry is not a
statutory "consumer" and the information at issue
is not "personally identifiable information." The
district court also reasoned that Perry's proposed
amendments to his complaint would be futile. We affirm.
to Perry's complaint, Appellee Cable News Network, Inc.
is a producer of news programming for television. Cable News
Network, Inc. along with its subsidiary Appellee CNN
Interactive Group, Inc. (collectively, "CNN") offer
media content on a mobile software application (or
"app"), and Perry alleges that CNN's
proprietary app (the "CNN App") is available for
download on mobile devices, including on Apple, Inc.
("Apple")'s iPhone. Through the CNN App, users
can get breaking news alerts, follow stories, and watch video
clips and coverage of live events.
App may be downloaded through the Apple iTunes Store. The CNN
App never seeks the user's consent to disclose the
user's personal data to any third parties. Perry, who is
a citizen of Illinois, began using the CNN App in early 2013
on his iPhone. He never consented to allow CNN to disclose
his personally identifiable information.
alleges that the CNN App, without a user's knowledge,
both tracks the user's views of news articles and videos
and also collects a record of this viewing activity. When a
user closes the CNN App, CNN sends the collected record of
viewing activity to a company called Bango, a third party
company that conducts data analytics. CNN also sends Bango a
media access control address ("MAC address"), which
is a unique string of numbers associated with a particular
user's specific mobile device.
then uses the MAC address to link an internet user's
unique device identifier to the user's other internet
activity in order to understand the user's online
behavior. Bango constructs a digital file related to the
user's online behavior by accessing information available
to Bango from an extensive range of networks and devices.
Bango is able to compile personal information, including the
user's name, location, phone number, email address, and
payment information, and it can attribute this information to
a single user across different devices and platforms.
February 18, 2014, Perry filed a proposed class action in the
district court. In his first amended complaint, Perry sets
forth one cause of action for violation of the VPPA, 18
U.S.C. § 2710. Perry seeks injunctive relief and both
statutory and punitive damages due to CNN's allegedly
unlawful disclosures of personally identifiable information.
this court's opinion in Ellis v. Cartoon Network,
Inc., 803 F.3d 1251 (11th Cir. 2015), in which we
affirmed the dismissal of a complaint bringing similar
allegations pursuant to the VPPA, Perry sought leave of the
district court to amend his complaint. On April 20, 2016, the
district court granted CNN's motion to dismiss the
amended complaint, reasoning that further amendment to the
complaint would be futile. Perry appeals.
AND STANDARD OF REVIEW
jurisdiction of this appeal pursuant to 28 U.S.C. §
1291. We review de novo the issue of whether a party has
standing. Palm Beach Golf Ctr.-Boca, Inc. v. John G.
Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir.
2015). We also review de novo a district court's decision
to deny leave to amend ...