Sony Units Get Plug Pulled On Customer Data Suit (Law360)

By Jonathan Randles

A California federal judge on Tuesday tossed a class action accusing two Sony Corp. subsidiaries of illegally storing and sharing customers' movie and video game purchase and rental histories, setting the stage for a potential Ninth Circuit battle over the Video Privacy Protection Act.

U.S. District Judge Phyllis J. Hamilton dismissed plaintiff Daniel Rodriguez's VPPA claims against Sony Computer Entertainment America LLC and Sony Network Entertainment International LLC. The decision comes after Judge Hamilton ruled in April that the law doesn't provide for a private right of action based solely on a company's alleged retention of customer information.

In a revised complaint, Rodriguez asserted that the Stored Communications Act provided him with independent means to seek damages for VPPA violations and proposed the VPPA retention as a breach of contract.

But Judge Hamilton rejected the new theories, saying Congress did not intend to permit plaintiffs to bring VPPA retention claims under the SCA. Congress passed that law in 1988 amid concerns over the release of then-U.S. Supreme Court nominee Robert Bork's video rental records during his confirmation hearings.

"Plaintiff cannot be permitted to have a second bite at the VPPA apple, and his attempts to repackage his VPPA claim as an SCA claim are rejected," Judge Hamilton said.

Sony's attorney Michael G. Rhodes of Cooley LLP said Wednesday that Rodriguez's lawyers will likely appeal the ruling. If that happens, it would be the first case in which the Ninth Circuit considers the VPPA as it relates to the retention of customer information, he said.

"The basic takeaway is that whether its brought under SCA or breach of contract, the court is not willing to accept that there is a private right of action for the retention of [personally identifiable information]," Rhodes said.

Rodriguez accused SCEA of disclosing its customers' personal information to SNEI when SNEI took over the PlayStation Network. SNEI was also accused of disclosing the customer information to third parties without customer consent for marketing and advertising purposes.

The suit sought certification of a class of SCEA customers whose personal information the company retained for more than 30 days, as well as a similar subclass of SNEI customers and a subclass of customers whose personal information the companies disclosed without permission.

Rodriguez was seeking $2,500 in damages for each violation of the VPPA, as well as punitive damages.

Attorneys for Rodriguez were not immediately available for comment Wednesday.

Rodriguez is represented by Sean P. Reis, Jay Edelson, Rafey S. Balabanian and Ari J. Scharg of Edelson McGuire LLC.

The Sony units are represented by Michael G. Rhodes, Ray A. Sardo, Michelle C. Doolin and Nicolas J. Echevestre of Cooley LLP.

The case is Rodriguez v. Sony Computer Entertainment America LLC et al., case number 4:11-cv-04084, in the U.S. District Court for the Northern District of California.

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