Opinion · District Court, N.D. Georgia
Jancik v. WebMD LLC
Jancik v. WebMD LLC, No. 1:22-cv-00644, UP10803274 (District Court, N.D. Georgia 2025)
- Type
- Opinion
- Court
- District Court, N.D. Georgia
- Jurisdiction
- Georgia
- Date
- 2025-02-20
- Topic
- general
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LINDA M. JANCIK, et al., Plaintiffs, v. CIVIL ACTION FILE NO. 1:22-CV-644-TWT WEBMD LLC, Defendant. OPINION AND ORDER This is a putative class action case. It is before the Court on Plaintiff Linda M.
Citator
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LINDA M. JANCIK, et al.,
Plaintiffs,
v. CIVIL ACTION FILE
NO. 1:22-CV-644-TWT
WEBMD LLC,
Defendant.
OPINION AND ORDER
This is a putative class action case. It is before the Court on Plaintiff
Linda M. Jancik’s Motion to Certify Class [Doc. 83]. For the reasons set forth
below, Plaintiff Jancik’s Motion to Certify Class [Doc. 83] is GRANTED.
I. Background
Plaintiff Jancik alleges that Defendant WebMD LLC (“WebMD”)
violated the Video Privacy Protection Act (“VPPA”) by improperly disclosing
her and other putative class members’ personally identifiable information
(“PII”) to Facebook.1 (3d Am. Compl. ¶¶ 49–51, 96–101 [Doc. 71]). Specifically,
by installing the “Facebook Pixel” tracking tool on webmd.com, WebMD
allegedly disclosed the video-viewing activity of its users to Facebook without
their consent. ( ¶¶ 24, 49–51). Jancik seeks four types of relief for her VPPA
claim: (1) declaratory judgment, (2) injunctive and equitable relief,
1 The Court notes that it adopts the parties’ practice of often using
“Facebook” rather than “Meta.” Facebook’s parent company is Meta.
(3) statutory damages of $2,500 for each Video Privacy Protection Act violation
under 18 U.S.C. § 2710
(c); and (4) attorney’s fees and costs. ( ¶ 101). The
relevant facts are as follows.
WebMD offers online health information through the website
webmd.com. ( ¶ 2). This online information includes both text and video
content. ( ¶ 2). WebMD generates revenue by “sell[ing] advertising space
on the videos themselves” and by “harvest[ing] data that sponsors can then
leverage for their own products.” ( ¶ 14).
Jancik alleges that WebMD has used the Facebook Pixel since at least
2020. ( Br. in Supp. of Pl.’s Mot. to Certify Class, at 4 (quoting Br. in Supp.
of Pl.’s Mot. to Certify Class, Ex. 5, 143:25–144:5 [Doc. 84-7])). The Facebook
Pixel is a piece of code offered by Meta that a company can install on its website
to track the activity of its site visitors. (3d Am. Compl. ¶ 20). The Pixel records
information such as the metadata for a webpage that a user visits and a user’s
button clicks, then transmits that information to Facebook. ( ¶ 21). Once the
data is received, Facebook matches (or attempts to match) the user’s activity
to a Facebook profile so that WebMD can distribute targeted advertisements
to that user on Facebook. ( ¶¶ 99, 19; ¶¶ 18–19 (describing how
this data can also be utilized to send targeted advertisements to those
identified as similar to the tracked webmd.com users)).
2
According to Jancik, WebMD directed the Facebook Pixel to collect and
transmit to Facebook information such as the URL of the webpages a user
views, users’ button clicks on those webpages, and the titles and descriptions
of videos on those webpages (“Event Data”). ( ¶¶ 24–29). For an individual
accessing webmd.com on a browser already logged into their Facebook account,
the Facebook Pixel automatically transmits a “c_user” cookie to Facebook as
well, which includes the user’s “Facebook ID.” ( ¶¶ 30, 40, 53). A Facebook
ID is a numerical code unique to each Facebook profile, and this c_user cookie
is a way that Facebook can directly match a user’s Event Data to a Facebook
profile. ( ¶ 53). Further, for an individual accessing webmd.com on a browser
already subscribed to WebMD’s newsletter, WebMD allegedly directed the
Facebook Pixel to additionally transmit the subscriber’s email address to
Facebook alongside the Event Data—through a process called “Advanced
Matching.” ( ¶¶ 45, 47).2 The addition of a WebMD user’s email address
helps Facebook match the Event Data to the user’s Facebook profile, if one
exists. ( ¶¶ 47–48). Again, once the video-viewing activity of webmd.com
users is linked to those users’ Facebook profiles, WebMD can send targeted
2 As best the Court can tell, Jancik alleges that WebMD also uploads
subscribers’ email addresses and certain user activity directly to Facebook
through a “Customer List” process that appears independent from the
Facebook Pixel. ( ¶¶ 59–60). Although the full extent and content of this
manually transmitted data is not entirely clear to the Court, it appears to allow
Facebook to similarly match users’ video-viewing activity to their Facebook
profiles.
3
advertisements—related to the video-viewing activity—to those users on
Facebook.
Jancik alleges that WebMD’s disclosure of its users’ video-viewing
activity along with their emails and/or Facebook IDs violates the Video Privacy
Protection Act. ( ¶¶ 49–51, 3–6). Beyond certain limited disclosures, the
Video Privacy Protection Act provides that “[a] 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 . . . .” 18 U.S.C. § 2710
(b)(1); § 2710(b)(2)(A)–(F) (listing the
circumstances in which a video tape service provider may disclose PII,
including disclosing PII “to the consumer,” “to any person with the informed,
written consent . . . of the consumer,” “to any person” for the purpose of
marketing to the consumer “if the disclosure is solely of the names and
addresses of consumers”). The VPPA defines “personally identifiable
information” as “includ[ing] information which identifies a person as having
requested or obtained specific video materials or services from a video tape
service provider.” § 2710(a)(3). A “video tape service provider” includes “any
person, engaged in the business, in or affecting interstate . . . commerce, of . . .
delivery of prerecorded video cassette tapes or similar audio visual materials.”
§ 2710(a)(4).
4
Pending before the Court is Jancik’s Motion to Certify Class [Doc. 83].
She proposes the following class (the “Class”):
All persons in the United States who, from February 17, 2020
through the date on which class notice is disseminated, had the
same email address associated with a subscription to webmd.com
and a Facebook account, and for whom there is associated Event
Data in the possession of Meta Platforms, Inc. showing their
video-viewing behavior on webmd.com.
(Br. in Supp. of Mot. to Certify Class, at 11). And she alternatively proposes
the following subclass (the “Subclass”):
All persons in the United States who, from February 17, 2020
through the date on which class notice is disseminated, had the
same email address associated with a newsletter subscription to
webmd.com and a Facebook account, and for whom there is
associated Event Data in the possession of Meta Platforms, Inc.
showing their video-viewing behavior on webmd.com that was
accessed through a webmd.com newsletter.
( at 11–12).
II. Legal Standard
Federal Rule of Civil Procedure 23(c)(1)(A) provides that a court must
“[a]t an early practicable time after a person sues or is sued as a class
representative . . . determine by order whether to certify the action as a class
action.” Fed. R. Civ. P. 23(c)(1)(A).
Courts must first assess whether a proposed class is “adequately defined
and clearly ascertainable.”3 , 986 F.3d 1296
, 1302
3 Before proceeding to the Rule 23(a)(1)–(4) requirements, courts
technically must first determine that a plaintiff has standing to sue.
, 977 F.3d 1039, 1046
(11th Cir. 2020) (quoting
5
(11th Cir. 2021) (quoting , 691 F.3d 1302, 1304
(11th Cir. 2012)). If the class meets this ascertainability requirement, courts
must then assess whether the class representatives have satisfied the four
requirements outlined in Rule 23(a):
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical
of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect
the interests of the class.
Fed. R. Civ. P. 23(a). Lastly, the proposed class must also satisfy at least one
of the alternative requirements in Rule 23(b), which are found in Rules 26(b)(3)
and 26(b)(2) for our purposes. , 648 F. App’x 930, 933
(11th Cir. 2016). A class can be certified under Rule 23(b)(3) if
“[1] the questions of law or fact common to class members predominate over
any questions affecting only individual members, and . . . [2] a class action is
, 221 F.3d 1266
, 1279 (11th Cir. 2000)).
Here, Jancik has provided records that indicate that WebMD’s use of the
Facebook Pixel caused her video-viewing behavior (which is associated with
her Facebook ID) to be shared with Facebook, and the VPPA likely provides
for damages in such instances. (Br. in Supp. of Pl.’s Mot. to Certify Class, at 7–
8 (citing Br. in Supp. of Pl.’s Mot. to Certify Class, Ex. 4 [Docs.84-6, 119])).
Moreover, with respect to the injunctive and declaratory relief sought, Jancik
alleges that she is a Facebook user who continues to “frequently visit[ ]
WebMD to . . . watch videos.” (3d Am. Compl. ¶¶ 63–64). WebMD does not
dispute that Jancik has standing as Named Plaintiff.
6
superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). A class can be certified under
Rule 23(b)(2) if a defendant has “acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ.
P. 23(b)(2).
The party seeking class certification bears the burden of proving that
these requirements are satisfied. , 350 F.3d 1181, 1187
(11th Cir. 2003); ,817 F.3d 1225, 1234
(11th Cir. 2016) (“[The Plaintiff] must affirmatively
demonstrate his compliance with Rule 23 by proving that the requirements are
satisfied.” (quotation marks and citation omitted)). The decision to grant
or deny class certification lies within the sound discretion of the district court.
, 382 F.3d 1241, 1250
(11th Cir. 2004),
, 553 U.S. 639
(2008);
, 138 F.3d 1374
, 1386 (11th Cir. 1998) (en
banc). When considering the propriety of class certification, the court should
not conduct a detailed evaluation of the merits of the suit.
, 417 U.S. 156
, 177–78 (1974). Nevertheless, the court must perform a “rigorous analysis” of the particular facts and arguments asserted in support of class certification. ,457 U.S. 147
, 161
7
(1982); , 733 F.2d 1551, 1555
(11th Cir. 1984). Frequently, that “rigorous analysis” will entail some overlap with the merits of the plaintiff's underlying claim. ,564 U.S. 338
, 351–
52 (2011).
III. Discussion
Ultimately, the Court grants Jancik’s Motion with respect to the
proposed Class. Because the proposed Class meets all class certification
requirements and Jancik appears to have proposed the Subclass only as an
alternative to certifying the proposed Class, the Court declines to rule on the
proposed Subclass. The Court discusses the Rule 23(a), Rule 23(b)(3), and
Rule 23(b)(2) requirements in turn below.
A. Rule 23(a)
1. Class Definition and Ascertainability
Before the Court can turn to the rest of the Rule 23(a) requirements, it
must determine whether the proposed Class is “adequately defined and clearly
ascertainable.” , 986 F.3d at 1302
(quoting ,691 F.3d at 1304
);
at 1302–03 (“[A]scertainability . . . is an implied prerequisite to the
requirements of Rule 23(a).”). The Eleventh Circuit has traditionally treated
the class definition and ascertainability prongs as a single inquiry, explaining:
“[A] proposed class is ascertainable if it is adequately defined such that its
membership is capable of determination.” at 1304. A class definition cannot
8
be adequate if it relies on “vague or subjective criteria.” at 1302. In the
Eleventh Circuit, proof of administrative feasibility is not a requirement of nor
in any way “part of” the ascertainability analysis (though it is a factor the
Court may consider in its separate Rule 23(b)(3) analysis). at 1303;
at 1304 (“[A]side from its limited relevance to Rule 23(b)(3)(D),
administrative feasibility is entirely unrelated to either Rule 23(a) or (b).”).
Here, the Court concludes that the proposed Class is “adequately
defined and clearly ascertainable.” at 1302 (quoting , 691 F.3d at 1304
). The Court agrees with Jancik that the proposed Class is specific and
relies on criteria that can be objectively determined, and that is sufficient to
satisfy this requirement. As the Court understands it, Jancik proposes to
(1) obtain records from both WebMD and Facebook and then (2) analyze these
records to ultimately identify the proposed Class. (Reply Br. in Supp. of Pl.’s
Mot. to Certify Class, at 1 [Doc. 95]). She explains that WebMD possesses the
list of its newsletter subscribers’ email addresses and that Facebook
possesses—as a result of the Facebook Pixel—Event Data associated with
those email addresses. (Br. in Supp. of Pl.’s Mot. to Certify Class, at 19–20
[Doc. 83-1]). According to Jancik, Meta has testified that it can determine if
there is a Facebook account associated with a given email address, and it has
also shown that it can produce webmd.com Event Data once a Facebook
account has been identified—as was the case for Event Data produced by Meta
9
for Plaintiff Jancik. ( at 1, 19–20). Jancik argues that the Event Data will
clearly and objectively indicate whether a WebMD subscriber viewed a video
because it will include the URL that the subscriber visited and the URL will
include the word “video” to indicate the page is a video. ( at 3). As an
example, Jancik points to the Event Data that Facebook produced for herself,
which shows that she visited “www.webmd.com/hypertension-high-blood-
pressure/video/blood-pressure-foods.” ( ). The URL includes only a video
about high blood pressure and a corresponding transcript. Jancik’s expert
report further states that identifying videos viewed from Event Data tables
produced by Meta could be analyzed through an automated or batch process,
with quality assurance checks.4 (Reply Br. in Supp. of Pl.’s Mot. to Certify
Class, Ex. 39 (“Verkhovskaya Report”) ¶¶ 57–58 [Doc. 96-9]).
4 In its Sur-Reply, WebMD asks the Court to exclude from evidence
Anya Verkhovskaya’s expert report under . (Def.’s Reply Br. in Opp’n
to Pl.’s Mot. to Certify Class, at 8–9). The Court ultimately concludes that
Verkhovskaya’s report should not be excluded. The relevant underlying facts—
that Meta can associate an email address with a Facebook account and that
Meta has produced Event Data for Plaintiff Jancik from her Facebook ID—
appear to be true based on the deposition of witness Tobias Wooldridge
[Doc. 96-7] and Plaintiff Jancik’s produced Event Data [Doc. 4]. In other words,
these facts appear true independent of Verkhovskaya’s report. It seems that
Verkhovskaya’s report summarizes these facts and then states that, as a result
of her prior experience with “.SQL staging tables,” she believes that sifting
through the Event Data tables could be done in a batch or automated process
(with quality assurance checks). (Verkhovskaya Report ¶¶ 49, 58).
Verkhovskaya has demonstrated that her methodology in this regard would be
adequate and reliable. ( ¶¶ 46–53). Therefore, the Court declines to
exclude Verkhovskaya’s report at this time.
10
WebMD argues that the proposed Class is not adequately defined or
ascertainable for several reasons, but the Court finds these arguments
unavailing at this time. WebMD first argues that the proposed Class is not
“adequately defined” because it does not define the phrase “subscription to
webmd.com.” (Def.’s Resp. Br. in Opp’n to Pl.’s Mot. to Certify Class, at 11
[Doc. 92]). The Court, however, agrees with Jancik that “[i]t is difficult to
fathom what the possible confusion is,” as there is clearly a button on
webmd.com where users can “subscribe” to WebMD’s newsletter using their
email address. (Reply Br. in Supp. of Pl.’s Mot. to Certify Class, at 2–3; ,
Ex. 35, at 1 [Doc. 96-5]). As Jancik explains, “[w]hen a user enters their email
address into this box and clicks the button, they become a subscriber to
WebMD’s email newsletter and the email address that they enter is associated
with a subscription to webmd.com.” (Reply Br. in Supp. of Pl.’s Mot. to Certify
Class, at 3 (citation omitted)).
WebMD next argues that Jancik’s proposal to rely on Facebook to
identify Event Data based on email addresses is “untested and insufficient.”
(Def.’s Sur-Reply in Opp’n to Pl.’s Mot. to Certify Class, at 2 [Doc. 123]). It
asserts that it “is not aware of any case where Meta provided such data on a
class basis” and that the testimony offered by Jancik to the contrary is
“overstated” and too “vague.” ( at 2–3 & 3 n.1). To be clear, Jancik offered
the following testimony from Tobias Woolridge:
11
Q: [ ] So assuming they are a Facebook user, can Meta use
someone’s email address that they have on record with their
account to find their Facebook user ID?
. . .
[A]: I suspect that that would be possible.
. . .
Q: . . . You testified a moment ago that you can use an email
address to locate a Facebook ID.
Do you recall that testimony? A: I believe that you can probably do that. (Reply Br. in Supp. of Pl.’s Mot. to Certify Class, Ex. 37 (“Woolridge Dep.”), at 221:11–222:10 [Doc. 96-7]). As of the date of his testimony, Tobias Woolridge was a senior software engineer on Meta’s Signals team, “which bears primary responsibility for maintaining and updating the Meta Pixel code.” (Br. in Supp. of Pl.’s Mot. to Certify Class, Ex. 2, ¶ 1 [Doc. 84-4]). Here, Jancik has offered testimony directly from Meta affirming that Meta “probably” can “use an email address to locate a Facebook ID,” and thus locate the webmd.com Event Data associated with that FacebookID.
(
Woolridge Dep. at 222:7–10). WebMD has not offered testimony to the
contrary; rather, WebMD appears to merely assert that “probably” is not good
enough without additional proof or details. ( Def.’s Sur-Reply in Opp’n to
Pl.’s Mot. to Certify, at 2–4). Although Woolridge’s testimony is not a definitive
account of Facebook’s capabilities, the Court finds it sufficient to satisfy
Jancik’s burden with respect to whether the proposed Class is capable of being
determined and thus ascertainable. The Court is especially comfortable with
this finding amid Jancik’s other allegations and evidence that show companies
12
use Facebook’s advertising tools and capabilities precisely because Facebook
can supposedly match data such as email addresses to an individual’s
Facebook profile and that Facebook advertises itself in this way. ( , 3d
Am. Compl. ¶¶ 47–48, 58–60 (referring to Facebook’s own descriptions of its
advertising tools)).
Lastly, WebMD argues that the proposed Class cannot be ascertained
because Jancik’s proposed method “fails to account” for the following
possibilities, which would require individualized proof to overcome: “intended
video content was never added to a URL”; “video content was added, but
inaccessible at the time visited”; “the video was removed before the user
visited”; or the person accessing the video is different from the owner of the
account or device tracked. (Def.’s Sur-Reply in Opp’n to Pl.’s Mot. to Certify
Class, at 4–6). As an initial matter, the Court notes that these concerns would
appear to veer toward the realm of administrative feasibility, which is not a
factor or requirement in the present ascertainability inquiry. But, nonetheless,
the Court concludes that WebMD’s concerns appear entirely speculative at this
point in time and do not defeat the ascertainability of the Class.
, 341 F.R.D. 328
, 345 (N.D. Ga. 2022) (“[The
Defendant’s] arguments about an overbroad class are based on speculation.
And where the potential that some number of individuals [are not actually
claimants] is hypothetical, courts should not allow such ‘speculation and
13
surmise to tip the decisional scales’ against class certification.”). WebMD does
not point to any instances in which its concerns became a reality nor does it
point to any evidence regarding these concerns being anything more than
exceedingly rare potential exceptions. Plainly, the idea that class certification
should be denied merely due to a possibility at this stage that a website gave a
404 error or a family member used someone else’s computer seems absurd.
Moreover, it does not seem unreasonable that a claims process could be
fashioned to help further verify whether a claimant meets the Class criteria,
in addition to using the Event Data gathered by WebMD and Facebook. Should
the proposed Class prove to be unascertainable in the future, however, WebMD
may move to de-certify the Class. Therefore, given all the above, the Court
finds that the proposed Class satisfies the ascertainability requirement.
2. Numerosity
A class must be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). Whether joinder is impracticable
“depends on many factors, including, for example, the size of the class, ease of
identifying its members and determining their addresses, facility of making
service on them if joined and their geographic dispersion.”
, 337 F.R.D. 434
, 447 (N.D. Ga. 2019) (quoting
, 789 F.2d 859
, 878 (11th Cir. 1986)). Mere numbers are not
outcome determinative, but courts generally presume a class containing more
14
than forty members satisfies the numerosity requirement.
, 784 F.2d 1546
, 1553 (11th Cir. 1986). “When the exact number of class members cannot be ascertained, the court may make ‘common sense assumptions’ to support a finding of numerosity.” ,254 F.R.D. 439, 458
(M.D. Ala. 2008) (quoting ,696 F.2d 925, 930
(11th Cir. 1983)); ,564 F.3d 1256, 1267
(11th Cir. 2009) (finding that, while a plaintiff “need not show the precise
number of members in the class,” the plaintiff must “bear[ ] burden of making
showing . . . that the class actually certified meets the numerosity
requirement.” (citation omitted)). If the numerosity inquiry remains a close
call, “a balance should be struck in favor of a finding of numerosity, since the
court has the option to decertify pursuant to Rule 23(c)(1).” , 337
F.R.D. at 447 (quoting , 696 F.2d at 930
).
Based on WebMD’s records, Jancik has identified at least 550,213 email
addresses corresponding to newsletter subscribers “associated with videos
accessed on webmd.com” (relevant to the Class), and she has identified at least
269,189 email addresses “associated with videos accessed on webmd.com by
clicking through newsletter links specifically” (relevant to the Subclass). (Br.
in Supp. of Pl.’s Mot. to Certify Class, at 13 (citing Br. in Supp. of Pl.’s Mot. to
Certify Class, Ex. 25)). These numbers reflect data from 2021 and 2022 alone,
though the Class includes parts of 2020, 2023, and 2024. (Reply Br. in Supp. of
15
Pl.’s Mot. to Certify Class, at 9–10). According to Jancik, “WebMD’s use of the
Pixel means that it sent all of this data to Meta,” and numerosity is thus
readily met. (Br. in Supp. of Pl.’s Mot. to Certify Class, at 14).
WebMD disputes whether the numerosity requirement is met, relying
on to show that a district court rejected almost
“identical” arguments to those presented by Jancik. ( Def.’s Sur-Reply Br.
in Opp’n to Pl.’s Mot. to Certify Class, at 10 (citing , 2024 WL 4367406
(S.D. Fla. Oct. 1, 2024)); Def.’s Resp. Br. in Opp’n to Pl.’s Mot. to Certify Class, at 17 (arguing similarly that Jancik’s numerosity argument relies on “sheer speculation”)). WebMD makes two primary arguments in this regard. First, WebMD argues that it would be “mere speculation,” as in , to conclude that the Class is sufficiently numerous based on the assumption that the “mere presence of the Meta Pixel on [WebMD’s] website resulted in the transmission of tens of thousands of [WebMD] subscribers’ personally identifiable information from [WebMD] to Meta.” ( Def.’s Sur-Reply Br. in Opp’n to Pl.’s Mot. to Certify Class, at 10– 11 (alterations in original) (quoting ,2024 WL 4367406
, at *6)). The
court stated that the plaintiff’s estimates of the number of newsletter
subscribers who viewed certain videos “t[old] the Court nothing” about the
percentage of those viewers were “were also their own Facebook
accounts, through the , and on the on which they
16
viewed [the] video[s].” , 2024 WL 4367406
, at *7. That percentage could theoretically be so high, according to the reasoning in , that the Class may not be numerous. Second, WebMD argues that a showing that one plaintiff’s Event Data was shared with Facebook, as is the case here and was the case in , is not sufficient for a court to infer numerosity. (Def.’s Sur-Reply Br. in Opp’n to Pl.’s Mot. to Certify Class, at 11). The Court concludes that Jancik has carried her burden of showing numerosity. Based on the evidence provided by the parties, “common sense” suggests that the Class far, far exceeds the forty-person benchmark. ,254 F.R.D. at 458
(quoting ,696 F.2d at 930
). Jancik has shown through
WebMD’s records that there are at least 550,213 unique subscriber emails with
video-viewing activity on webmd.com. (Br. in Supp. of Pl.’s Mot. to Certify
Class, at 13). Although the number of individuals who ultimately had a
Facebook account and had their PII shared will be smaller than this 550,213
figure due to certain user settings, the proffered evidence is sufficient for this
Court to make the reasonable inference that the proposed Class is numerous.
There will inevitably be some unknowns in estimating class size when the
Plaintiff cannot yet possess the records critical to determining the actual size,
but it seems unreasonable to conclude at this stage that numerosity is unmet.
Once Meta is subpoenaed, it appears that the actual number of Class members
can be determined relatively quickly. The Court anticipates this number will
17
be quite large and likely numbering at least in the tens of thousands. Other
courts have reached findings of numerosity with seemingly similar unknowns.5
, , 255 F.R.D. 608, 615
(S.D. Fla. 2009) (finding numerosity met based on a “reasonable estimate” of the number of potential class members who received a certain message over the phone, though the Court recognized some unknown number of individuals would not have heard the message due to not answering the phone, hanging up the phone, or other reasons); ,322 F.R.D. 683, 697
(S.D. Fla. 2017) (finding numerosity met where the plaintiff showed that the universe of potential class members totaled approximately 5,000, though the actual number would be limited—to an unknown extent—to those “who requested a folio at the front desk”). Moreover, the facts of the present case support a stronger case for numerosity compared to those presented in for two additional reasons. For one, the starting number of subscribers who viewed a relevant 5 The Court additionally notes that the case underlying the reasoning in , ,654 F.3d 1256
, merely found that it was impermissible to
find numerosity where (1) a proposed class included T-Mobile sales associates
in Florida who experienced certain problems with receiving their commissions
but where (2) the plaintiffs had only provided testimony that T-Mobile sales
associates across the country numbered “in the thousands.” at 1264, 1267.
The court suggested that the plaintiffs needed to at least make a showing
of the number of T-Mobile sales associates (even if data was not
available on the number of associates who experienced problems with their
commission). at 1268. That required showing was indeed a low bar.
18
video in (35,845), 2024 WL 436740
, at *6, was substantially smaller than in the present case (550,213), (Br. in Supp. of Pl.’s Mot. to Certify Class, at 13), making it more likely that this proposed Class is in fact numerous. Second, the fact that WebMD directed the Facebook Pixel to transmit subscribers’ email addresses along with their Event Data helps alleviate three of the six unknown variables that were at issue in . The court found that PII was not transmitted to Facebook if subscribers who viewed a video were not simultaneously (1) logged into their own Facebook accounts on the same (2) device and (3) browser. ,2024 WL 4367406
, at *7–8.
But, here, WebMD appears to have utilized an “Advanced Matching” process
in which Facebook may still have associated Event Data with individual
Facebook profiles—based on the email addresses WebMD provided—even if
the user was never logged into Facebook. ( Br. in Supp. of Pl.’s Mot. to
Certify Class, at 3; Reply Br. in Supp. of Pl.’s Mot. to Certify Class, at 7). This
assuages the Court’s concern that presently unknown variables could reduce
the Class size so immensely.
The Court is persuaded that joinder is further made impracticable due
to the anticipated geographic diversity of the proposed Class—given that
anyone across the country can access WebMD’s website—and the ability to
achieve seemingly significant judicial economy with a class action—given
joinder may likely require individually subpoenaing Meta for each
19
subsequently joined plaintiff. , 337 F.R.D. at 447 (quoting ,
789 F.2d at 878); , 2007 WL 9701551
, at *5 (N.D. Ga. Jan. 16, 2007) (quoting ,99 F.R.D. 562, 564
(M.D. Ala. 1983) (regarding “judicial economy” as a “key” factor)). The Court notes that it appears neither of these factors were considered by the court. Lastly, the Eleventh Circuit has instructed courts to strike a balance “in favor of” numerosity since the parties can always move to de-certify the class later. , 337 F.R.D. at 447 (quoting ,696 F.2d at 930
). In the highly unusual circumstance that the records produce very few actual Class members, the Court could consider a motion to de-certify the Class. But at this class certification stage, the Court is comfortable concluding that Jancik has made a sufficient showing of numerosity. 3. Commonality A proposed class satisfies the commonality requirement if “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The claims of the proposed Class “must depend upon a common contention . . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” ,564 U.S. at 350
;
(“What matters . . . is . . . the capacity of a class-wide proceeding to
20
generate common apt to drive the resolution of the litigation.” (citation
omitted)). Rule 23(a)(2) is a “low hurdle,” , 568 F.3d 1350, 1356
(11th Cir. 2009), and a plaintiff need only show that one common contention exists, at 1355 (“Commonality requires ‘that there be at least one issue whose resolution will affect all or a significant number of the putative class members.’” (citation omitted)). Here, it is clear that at least one common contention exists regarding all class members, including (1) whether the Facebook Pixel disclosed video-viewing behavior to Facebook, (2) whether that behavior or any other data constitutes PII, and (3) whether class members consent to those disclosures under the terms of the Video Privacy Protection Act. ( Br. in Supp. of Pl.’s Mot. to Certify Class, at 15). Litigating a class action suit would produce common answers to these questions, and each of these answers will “drive the resolution of the litigation” and “affect all . . . putative class members.” ,564 U.S. at 350
; ,568 F.3d at 1355
.
WebMD argues that “individual differences such as privacy settings,
device usage, and account sharing . . . impede the generation of common
answers. (Def.’s Resp. Br. in Opp’n to Pl.’s Mot. to Certify Class, at 20;
(“Plaintiff’s claims will require an individualized inquiry; thus, certification
must be denied for lack of commonality.”)). However, the Court agrees with
Jancik that the proposed Class is “defined with reference to whether Meta has
21
the relevant Event Data in its possession.” (Reply Br. in Supp. of Pl.’s Mot. to
Certify, at 12). It thus does not matter whether an individual had a specific
privacy, cookie, or other setting that blocked the Facebook Pixel from
automatically transmitting Event Data to Facebook because the Class is
limited in scope to only those individuals for which Facebook has available
Event Data. ( ; at 13 (“If Meta has Event Data showing that a
particular user watched a particular video on webmd.com, that is absolute
proof of a violation because there is no other way that Meta would have that
data.”)). In other words, Jancik’s proposed class definition appears to
circumvent the issues raised by WebMD regarding commonality. Therefore,
the Court finds the commonality requirement met.
4. Typicality
“The claim of a class representative is typical if ‘the claims or defenses
of the class and the class representative arise from the same event or pattern
or practice and are based on the same legal theory.’” , 568 F.3d at 1357
(citation omitted). “A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” (quoting ,244 F.3d 807
, 811 (11th Cir.
2001)).
Here, the claims of named Plaintiff Jancik are clearly typical of the
proposed Class. Just like other class members, Jancik supposedly “watched
22
videos on webmd.com” during the relevant time period, and WebMD used the
Facebook Pixel to collect her video-viewing activity and other PII and transmit
that data to Facebook. (Br. in Supp. of Pl.’s Mot. to Certify Class, at 16). Thus,
Jancik’s claims “are based on the same legal theory” as the proposed Class as
a whole. , 568 F.3d at 1357
.
WebMD contends that Jancik is not in the “same shoes” as other class
members because “no PII about Plaintiff was transferred from the Website” to
Facebook. (Def.’s Resp. Br. in Opp’n to Pl.’s Mot. to Certify Class, at 15). To
support this contention, WebMD points to rows in Jancik’s Event Data that
note “0” and “FALSE” for a column with the label “has_user_PII_data.” ( ).
However, as Jancik points out, WebMD misunderstands the
“has_user_PII_data” column. (Reply Br. in Supp. of Pl.’s Mot. to Certify Class,
at 7). To the best of the Court’s understanding, the output in the
“has_user_PII_data” column depends on how the Event Data is matched to a
Facebook profile, not on whether WebMD disclosed PII for that user. ( at 7
(further explaining the intricacies of the “has_user_PII_data” column”)).
Without diving too far into the specifics of this data point, the Court finds it
sufficient to note that Facebook was able to produce Plaintiff Jancik’s Event
Data despite the “0” and “FALSE” values for her “has_user_PII_data” column,
thus appearing to moot WebMD’s concern that none of Jancik’s PII was shared
to Facebook. ( )
23
WebMD additionally contends that Plaintiff Jancik is not typical
because Facebook produced her Event Data based on Jancik’s Facebook ID
while Facebook would supposedly produce the Event Data of other class
members based on class members’ email addresses. Because WebMD has not
shown why the difference is significant—other than as already addressed
above—the Court does not find this argument persuasive. Given all the above,
the Court thus finds that Plaintiff Jancik is typical of the proposed Class.
5. Adequacy
The adequacy requirement tests “(1) whether any substantial conflicts
of interest exist between the representatives and the class; and (2) whether the
representatives will adequately prosecute the action.”
, 707 F. Supp. 3d 1157
, 1174 (N.D. Ala. 2023) (quoting ,350 F.3d at 1189
).
Beyond arguing that proposed Class Counsel is inadequate because it
represents a class member that is atypical, WebMD does not dispute the
competency of proposed Class Counsel. Therefore, because the Court has
already found that Plaintiff Jancik is typical of the proposed Class, the Court
is not aware of any other reason why proposed Class Counsel would not
adequately represent the interests of the class. And, after further review of the
parties’ briefs and the firm resume of proposed Class Counsel [Doc. 84-13], the
Court agrees that (1) there appear to be no “substantial” (or any) conflicts of
24
interest between Plaintiff Jancik and the other class members and (2) Class
Counsel has demonstrated it has sufficient qualifications to “adequately
prosecute” this case. , 707 F. Supp. 3d at 1174 (quoting
, 350 F.3d at 1189
).
B. Rule 23(b)(3)
To certify a class under Rule 23(b)(3), a plaintiff must show that
“questions of law or fact common to class members predominate over any
questions affecting only individual members” and that “a class action is
superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) identifies four factors
relevant to this inquiry: (a) “class members’ interests in individually
controlling the prosecution or defense of separate actions”; (b) “the extent and
nature of any litigation concerning the controversy already begun by or against
class members”; (c) “the desirability or undesirability of concentrating the
litigation of the claims in the particular forum”; and (d) “the likely difficulties
in managing a class action.” Fed. R. Civ. P. 23(b)(3)(A)–(D). As part of the
analysis on “managing” class actions, courts must consider administrative
feasibility. , 986 F.3d at 1303–04. But plaintiffs need not prove
administrative feasibility “in an absolute sense”; rather, “[t]he manageability
inquiry focuses on whether a class action ‘will create relatively more
management problems than any of the alternatives.” at 1304 (citing ,
25
382 F.3d at 1273
). The Court holds that Jancik has shown predominance and superiority. Regarding predominance, the Court agrees that Jancik will use “common evidence that will not differ in the slightest from one class member to another” in proving each element of the VPPA claim. (Br. in Supp. of Pl.’s Mot. to Certify Class, at 18). The elements include whether webmd.com subscribers are “consumers,” WebMD is a “video tape service provider,” the type of data transmitted constitutes “personally identifiable information,” WebMD “knowingly disclosed” such data, and WebMD obtained “informed, written consent.”18 U.S.C. §§ 2710
(a)(1), 2710(a)(3)–(4), 2710(b)(1)–(2). Moreover,
as Jancik explains, the VPPA provides for statutory damages of $2,500, further
easing the question of individualized damages. § 2710(c). WebMD
attempts to argue that a “manual, individualized review” of each potential
Class member’s data will be necessary, ( Def.’s Resp. Br. in Opp’n to Pl.’s
Mot. to Certify Class, at 22; Def.’s Sur-Reply in Opp’n to Pl.’s Mot. to Certify
Class, at 12), but the Court disagrees. As explained above in the
ascertainability section, the production of Event Data anticipated from Meta
should clearly reveal the individuals from which Meta received video-viewing
data (accounting for device, browser, and other settings). (Reply Br. in Supp.
of Pl.’s Mot. to Certify Class, at 11–12 & 11 n.6). And a class action
administrator can take care of any further quality assurance checks (e.g.,
26
whether a video embedded on a webpage loads an error message) and claims
process verifications.
Regarding superiority, the Court agrees that “a class action here is
superior to hundreds of thousands of individual cases or joinder.” (Br. in Supp.
of Pl.’s Mot. to Certify Class, at 19). Thus far, no class members have expressed
interest in litigating this case through separate actions; no other pending cases
appear to address the current controversy; no one has suggested that Georgia,
being where WebMD is located, is an inappropriate forum; and no significant
manageability concerns appear to outweigh the manageability concerns that
would exist if this case was litigated through separate actions. ( at 19–20).
WebMD argues that “class treatment is not superior, because . . . each putative
class member would need to individually prove that his or her PII was captured
and shared with Meta.” (Resp. Br. in Opp’n to Pl.’s Mot. to Certify Class, at 24;
Def.’s Sur-Reply Br. in Opp’n to Pl.’s Mot. to Certify Class, at 13
(asserting same)). For the same reasons discussed above, that argument is
unavailing. Therefore, the Court hereby certifies the proposed Class under
Rule 23(b)(3).
C. Rule 23(b)(2)
Although the Court has held that certification under Rule 23(b)(3) is
appropriate, Jancik may seek certification under Rule 232(b)(2) as well.
, 564 U.S. 360
. Rule 23(b)(2) certification is available if WebMD “has
27
acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “A declaratory or
injunctive relief class pursuant to Rule 23(b)(2) is appropriate only if ‘the
predominant relief sought is injunctive or declaratory.’”
, 469 F. App’x 762, 765
(11th Cir. 2012) (quoting
, 244 F.3d at 812 (citation omitted)). The monetary relief must be
to the injunctive or declaratory relief. , 244 F.3d at 812
(citation omitted)). “Monetary damages are incidental when ‘class members
automatically would be entitled [to them] once liability to the class . . . as a
whole is established[,]’ and awarding them ‘should not entail complex
individualized determinations.’” , 469 Fed. App’x at 765
(alterations in original) (quoting , 244 F.3d at 812).
Here, Jancik seeks an injunction “as is necessary to protect the interests
of Plaintiffs and the Class by requiring [WebMD] to comply with VPPA’s
requirements for protecting a consumer’s PII” and a declaration that WebMD’s
conduct violates the VPPA. (3d Am. Compl. ¶ 101). Jancik argues that any
monetary damages sought would be “incidental” due to the $2,500 statutory
damages required by the VPPA. (Br. in Supp. of Pl.’s Mot. to Certify Class, at
20). WebMD argues that Jancik’s request is “vague on what injunctive or
declaratory relief is sought or how that would be effectuated.” (Def.’s Resp. Br.
28
in Opp’n to Pl.’s Mot. to Certify Class, at 25). It also argues that enjoining
WebMD is unnecessary because webmd.com visitors are the ones who
“primarily” control whether their data is shared; they can, for example, opt out
of subscriptions; adjust device, browser, or Facebook settings; or deactivate
their Facebook accounts. ( ; Def.’s Sur-Reply Br. in Opp’n to Pl.’s Mot. to
Certify Class, at 13–14; at 14 (suggesting an injunction would
intrude on subscribers who consented to the sharing of their PII)). The Court
addresses these arguments below.
The Court agrees with Jancik that certification under Rule 23(b)(2) is
appropriate. The Court does not find Jancik’s request for declaratory or
injunctive relief overly vague. As Jancik explains, WebMD is still supposedly
using the Facebook Pixel in a way that may violate the VPPA, (Reply Br. in
Supp. of Pl.’s Mot. to Certify Class, at 10 n.4), and WebMD could be enjoined
to either stop using the Pixel in this violative manner or to obtain informed
consent compliant with the VPPA, ( at 15 n.8). Additionally, Jancik has
shown that monetary damage can be fairly characterized as “incidental” under
the Eleventh Circuit’s description. Class members would “automatically” be
entitled to $2,500 in statutory damages “once liability to the class . . . as a
whole is established.” , 469 Fed. App’x at 765 (quoting ,
244 F.3d at 812). And the $2,500 figure set by the VPPA means that “there will
be no individual damage determinations.” (Reply Br. in Supp. of Pl.’s Mot. to
29
Certify Class, at 15; (citing , 469 Fed. App’x at 765
(stating that awarding damages in a Rule 23(b)(2) class may “not entail
complex individualized” damage determinations)). Additionally, the Court is
not convinced by WebMD’s arguments that injunctive relief is unnecessary
since individual Class members could adjust their personalized settings.
WebMD cites no authorities regarding the relevance or importance of this fact,
and it does not appear particularly relevant given that an injunction could
potentially remedy WebMD’s continued use of the Facebook Pixel “for the class
as a whole.” Fed. R. Civ. P. 23(b)(2). Therefore, the Court hereby certifies
the proposed Class under Rule 23(b)(2).
D. Class Representative and Class Counsel
The Court hereby appoints Plaintiff Linda M. Jancik as Class
Representative. According to Rule 23(g)(1), the Court must also appoint Class
Counsel. Fed. R. Civ. P. 23(g)(1). Plaintiff’s counsel satisfies the adequacy
requirement of Rule 23(a)(4), and the firm’s resume otherwise supports a
finding that Plaintiff’s counsel possesses the experience, knowledge, and
financial resources to adequately and fairly represent the interests of both the
named Plaintiff and the Class. Fed. R. Civ. P. 23(b)(1)(A). Therefore, the
Court appoints Plaintiff’s counsel as Class Counsel in this case.
30
IV. Conclusion
For the foregoing reasons, Plaintiff Linda M. Jancik’s Motion to Certify
Class [Doc. 83] is GRANTED. The Court appoints Plaintiff Jancik as Class
Representative and Plaintiffs counsel as Class Counsel.
SO ORDERED, this 20th day of February, 2025.
Aeterna. Fodlrirn g_
THOMAS W. THRASH, JR.
United States District Judge
31