1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 STEPHEN PLOTSKER and MICHAEL Case No.: 2:24-cv-04412-MEMF-RAO 11

KLEEMANN,

ORDER DENYING DEFENDANTS’

12 Plaintiffs, MOTION TO DISMISS 13 v. [ECF NO. 23] 14 ENVATO PTY LTD. and ENVATO

ELEMENTS PTY LTD.,

15 16 Defendants. 17 18 19 20 21 Before the Court is Defendants Envato Pty Ltd. and Envato Elements Pty Ltd.’s Motion to 22 Dismiss and Request for Judicial Notice, ECF No. 23. For the reasons stated herein, the Court 23 GRANTS the Request for Judicial Notice and DENIES the Motion. 24 25 26 27 / / / 28 / / / 1 BACKGROUND 2 I. Factual Background1 3 Plaintiffs Stephen Plotsker and Michael Kleemann (collectively, “Plaintiffs”) are, 4 respectively, a resident of Boca Raton, Florida, and a resident of San Diego, California. FAC ¶¶ 8, 9. 5 Defendants Envato Pty Ltd. and Envato Elements Pty Ltd. (collectively, “Defendants”) are 6 Australian proprietary limited companies with their sole United States office in Los Angeles, 7 California. Id. ¶ 10. 8 Defendants develop, own, and operate a subscription service called Envato Elements, 9 through which they market a library of over 100,000 pre-recorded videos to content creators. Id. ¶¶ 10 2, 20. Subscribers, including Plaintiffs, must subscribe to the service to license and download pre- 11 recorded videos at www.elements.envato.com. Id. ¶¶ 4, 19. As of September 2022, Defendants had 12 more than 665,000 paid subscribers. Id. ¶ 3. 13 Plotsker purchased a digital subscription to Envato Elements in or about January 2019. Id. ¶ 14 52. Kleemann purchased his subscription in or about August 2019. Id. ¶ 58. Both Plaintiffs 15 frequently visit Defendants’ website to, among other things, watch and download pre-recorded 16 videos. Id. ¶¶ 53, 59. Plotsker discovered around March 2024, and Kleeman around June 2024, that 17 Defendants collected and transmitted Plaintiffs’ personally identifiable information (“PII”), which 18 includes their Facebook IDs and browser identifiers, to third parties without their consent. Id. ¶¶ 54– 19 56 (concerning Plotsker), 60–62 (concerning Kleemann). Defendants also disclosed information 20 about the webpages they viewed, the buttons they clicked, and the titles of the videos they watched 21 or downloaded. Id. ¶¶ 55, 61. 22 Defendants transmitted such data through the Meta Pixel installed on their website. See 23 generally id. ¶¶ 26–50. Meta Pixel, named after Meta, the owner of Facebook and formerly known 24 as Facebook, Inc., is a piece of code that advertisers, e.g., businesses like Defendants, can integrate 25 into their websites. Id. ¶¶ 26, 31. Advertisers can configure a Meta Pixel so that it tracks, for 26

27 1 The following factual allegations are derived from the allegations in Plaintiffs’ First Amended Complaint, 28 ECF No. 19 (“FAC”), except where otherwise indicated. The Court makes no finding on the truth of these 1 instance, what webpages a visitor views, what buttons a visitor clicks, or what purchases a visitor 2 makes, id. ¶ 32, or collects identifying information, such as IP addresses, id. ¶ 33. A Meta Pixel 3 subsequently sends the collected information to Facebook for processing, analysis, and assimilation 4 into datasets. Id. ¶ 31. Based on such datasets, Facebook sells advertisement space on its website so 5 advertisers can engage in targeted advertising to Facebook users who may have shown interest in the 6 advertisers’ businesses. Id. ¶¶ 27, 30. 7 From an unknown date to the present, Defendants has embedded a Meta Pixel on and 8 throughout their website and transmitted “Plaintiffs’ and Class Members’ [PII] . . . , without their 9 consent, to Meta . . . .” Id. ¶ 35. The Meta Pixel on Defendants’ website automatically transmitted to 10 Meta Plaintiffs’ or the Class Members’ personal identifiers, including IP addresses, contained in the 11 c_user, _fr, and datr cookies; the fact that they had visited Defendants’ website; and the titles of the 12 webpages that they visited. Id. ¶ 36; see id. ¶¶ 40, Fig. 3 (displaying that Defendants’ Meta Pixel 13 collected the URL and the title of a visited webpage); 41, Fig. 4 (displaying that Defendants’ Metal 14 Pixel collected button click information after a visitor clicked the download button for a pre- 15 recorded video, and the title of the video). In particular, through the c_user cookie, the Meta Pixel 16 that Defendants installed on their website transmitted Plaintiffs’ and Class Members’ Facebook IDs, 17 which can be used by Facebook and any ordinary person to find, among other information, the 18 Plaintiffs’ and Class Members’ real names. Id. ¶ 37; see id. ¶¶ 43 (explaining that “[a] visitor who 19 has not logged out of Facebook while watching and/or downloading a video on Envato will 20 transmit” unencrypted Facebook ID to Meta through the c_user cookie), 44 (explaining that by 21 appending a Facebook ID to the end of Facebook’s URL, “[a]nyone can identify a Facebook 22 profile—and all personal information publicly listed on that profile, including a person’s first and 23 last name”); see also id. ¶¶ 46–50 (explaining that even when a visitor has logged out of Facebook, 24 the _fr cookie, which contains encrypted Facebook ID and browser identifier information, is 25 transmitted to Meta). 26 The Meta Pixel, as well as other tracking tools on Defendants’ website, were and remain to 27 this day invisible to a visitor. Id. ¶ 65. Moreover, Defendants’ Privacy Policy does not inform their 28 1 customers that their PII will be disclosed to third parties like Meta. Id. ¶ 66. Defendants have not 2 otherwise disclosed to their customers that their PII would be transmitted to third parties. Id. ¶ 68. 3 II. Procedural History 4 Plotsker, individually and on behalf of all others similarly situated, filed suit in this Court on 5 May 28, 2024. ECF No. 1 (“Complaint”). On June 17, 2024, Plotsker filed the First Amended 6 Complaint and added Kleemann as another representative plaintiff. ECF No. 19 (“FAC”). Plaintiffs 7 allege only one cause of action: Violation of the Video Privacy Protection Act, 18 U.S.C. §§ 2710, et 8 seq. See generally id. 9 On August 9, 2024, Defendants filed the instant Motion to Dismiss. ECF No. 23 (“Motion”). 10 The Motion includes a Request for Judicial Notice of certain webpages from Defendants’ website. 11 ECF No. 23-15 (“RJN”). On September 20, 2024, Plaintiffs filed their opposition to the Motion.2 12 ECF No. 28 (“Opposition”). Defendants filed their reply on October 11, 2024. ECF No. 29 13 (“Reply”). 14 On January 2, 2025, the Court, on its own motion, continued the hearing on the Motion to 15 April 17, 2025. ECF No. 34. The parties subsequently requested the Court continue the hearing to 16 April 24, 2025. ECF No. 35. The Court granted the request. ECF No. 38. 17 On April 22, 2025, the Court deemed this matter appropriate for resolution without oral 18 argument and vacated the hearing. ECF No. 39; see C.D. Cal. L.R. 7-15. 19 REQUEST FOR JUDICIAL NOTICE 20 I. Applicable Law 21 A court may judicially notice facts that “(1) [are] generally known within the trial court’s 22 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 23 cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court “must take judicial notice if a party 24 requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2). Once a 25

26 2 On October 15, 2024, Plaintiffs filed Michael Salazar v. National Basketball Association, No. 23-1147 (2d 27 Cir. 2024) as supplemental authority in support of the Opposition. ECF No. 30. On May 5, 2025, Defendants filed Solomon v. Flipps Media, Inc., 136 F.4th 41 (2d Cir. 2025) as supplemental authority in support of the 28 Motion. ECF No. 40. On June 24, 2025, Defendants filed Hughes v. National Football League, No. 24-2656, 1 fact is judicially noticed, the court “must instruct the jury to accept the noticed fact as conclusive.” 2 Fed. R. Evid. 201(f). 3 On a motion to dismiss, courts are generally prohibited from “consider[ing] any material 4 beyond the pleadings,” as doing so converts the motion into a motion for summary judgment. Lee v. 5 City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), overruled on other grounds by Galbraith v. 6 County of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). There are two exceptions: (1) a 7 court may consider “material which is properly submitted as part of the complaint” and (2) a court 8 may take judicial notice of “matters of public record” but not “fact that is subject to reasonable 9 dispute” Id. at 688–89 (internal quotation omitted). Documents not attached to the complaint may 10 similarly be considered without converting a motion to dismiss into a motion for summary judgment 11 if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and 12 (3) no party questions the authenticity of the document.” See United States v. Corinthian Colleges, 13 655 F.3d 984, 998–99 (9th Cir. 2011) (citing Lee, 250 F.3d at 688; Marder v. Lopez, 450 F.3d 445, 14 448 (9th Cir. 2006)). 15 Courts may take judicial notice of public-facing websites whose accuracy and authenticity 16 are “not subject to dispute.” In re Amgen Inc. Sec. Litig., 544 F. Supp. 2d 1009, 1023 (C.D. Cal. 17 2008); Threshold Enters. Ltd. v. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 145–46 (N.D. Cal. 18 2020) (taking judicial notice of “screenshots and printouts” of the parties’ websites). Publicly 19 available documents, including websites, are judicially noticeable “for the fact that they exist” and 20 not for the truth of the matter asserted therein. Datel Holdings Ltd. v. Microsoft Corp., 712 F. Supp. 21 2d 974, 984 (N.D. Cal. 2010). 22 The judicially created “incorporation by reference” doctrine provides another avenue through 23 which a defendant may request a court treat “certain documents as though they are of the complaint 24 itself” for a motion to dismiss. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 25 2018). “[A] defendant may seek to incorporate a document into the complaint if the plaintiff refers 26 extensively to the document or the document forms the basis for the plaintiff’s claim.” Id. (citing 27 United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)) (cleaned up). Although a court “may 28 assume an incorporated document’s contents are true for purposes of a motion to dismiss . . . it is 1 improper to assume the truth of an incorporated document if such assumptions only serve to dispute 2 facts stated in a well-pleaded complaint.” Id. at 1003 (cleaned up). 3 II. Discussion3 4 Defendants ask this Court to judicially notice Exhibit A to M to the Declaration of Mark 5 David McPherson, ECF No. 23-1 at 2–3. Defendants argue that Exhibits A through G and M (ECF 6 Nos. 23-2–23-8, 23-14) are true and correct copies of printouts of portions of their publicly available 7 website to which Plaintiffs cite or referenced in the FAC. ECF No. 23-1 at 4. As to Exhibits H 8 through L (ECF Nos. 23-9–23-13), Defendants assert that they relate to the Terms of Use, Privacy 9 Policy, and Cookie Policy to which Plaintiffs must have agreed when they created their accounts. Id. 10 at 4–5; see FAC ¶ 66 (referencing Defendants’ Privacy Policy). Plaintiffs do not oppose the RJN. 11 See generally Opp’n (incorporating Exhibits). 12 The Court takes judicial notice of Exhibits A through M. As to Exhibits A through G and M, 13 the Exhibits are recent screenshots of various webpages of Defendants’ public-facing website, and 14 Plaintiffs do not dispute their accuracy and authenticity. See In re Amgen Inc. Sec. Litig., 544 F. 15 Supp. 2d at 1023. As to Exhibits H through J and L, which Defendants retrieved from archival 16 websites, the Court finds them judicially noticeable under the “incorporation by reference” doctrine. 17 Compare FAC ¶¶ 4, 52–53, 58–59 (allegations about subscribing and frequently visiting 18 Defendants’ website to watch and download videos) with ECF Nos. 23-9 (Exhibit H, a copy of the 19 “Sign Up” webpage), 23-13 (Exhibit L, a copy of the “Sign In” webpage as of February 16, 2023); 20 compare FAC ¶ 66 (alleging that “Defendants Privacy Policy does not inform Defendants’ 21 customers that their [PII] will be disclosed to unauthorized third parties . . . .”) with ECF No. 23-11 22 (Exhibit J, Privacy Policy). As to Exhibits I (Terms of Use as of October 25, 2018) and K (Cookie 23 Policy as of January 8, 2019), although Plaintiffs do not refer extensively to them in the FAC, the 24 Court finds that they form the basis of Plaintiffs’ claim under the incorporation by reference 25 doctrine. See Khoja, 899 F.3d at 1002. 26 27

28 3 Throughout this Order, when citing to Defendants’ Exhibits, ECF Nos. 23-2–23-14, the Court cites to the 1 The Court, to be clear, takes notice of these Exhibits for the fact that they existed on their 2 respective dates of capture. At this time, the Court does not make any findings, for instance, as to 3 whether Plaintiffs accepted, or whether Defendants failed to adequately inform their customers of, 4 the terms and policies of using Defendants’ website. That is a fact subject to reasonable dispute, 5 which should be determined by a jury. See Datel Holdings Ltd., 712 F. Supp. 2d at 984. 6 For the foregoing reasons, the Court GRANTS Defendants’ RJN and takes judicial notice of 7 Exhibits A through M. ECF Nos. 23-2–23-14. 8 MOTION TO DISMISS 9 I. Applicable Law 10 Federal Rule of Civil Procedure 12(b)(1) authorizes a party to seek dismissal of an action for 11 lack of subject-matter jurisdiction. “Because standing and ripeness pertain to federal courts’ subject 12 matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.” Chandler v. State 13 Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). In the context of a 12(b)(1) motion, 14 the plaintiff bears the burden of establishing Article III standing to assert the claims. Id. 15 Rule 12(b)(1) jurisdictional challenges can be either facial or factual. Safe Air for Everyone v. 16 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a motion to dismiss attacks subject-matter 17 jurisdiction on the face of the complaint, the court assumes the factual allegations in the complaint 18 are true and draws all reasonable inferences in the plaintiff’s favor. Doe v. Holy See, 557 F.3d 1066, 19 1073 (9th Cir. 2009). Moreover, the standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 20 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), apply with equal force to Article III standing 21 when it is being challenged on the face of the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 22 1122, 1131 (9th Cir. 2012) (applying Iqbal). Thus, in terms of Article III standing, the complaint 23 must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 24 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 25 Rule 12(b)(6) allows an attack on the pleadings for “failure to state a claim upon which relief 26 can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain 27 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 28 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the 1 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 2 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 3 The determination of whether a complaint satisfies the plausibility standard is a “context- 4 specific task that requires the reviewing court to draw on its judicial experience and common sense.” 5 Id. at 679. Generally, a court must accept the factual allegations in the pleadings as true and view 6 them in the light most favorable to the plaintiff. Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 7 2017); Lee, 250 F.3d at 679. But a court is “not bound to accept as true a legal conclusion couched 8 as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 9 As a general rule, leave to amend a dismissed complaint should be freely granted unless it is 10 clear the complaint could not be saved by any amendment. See Fed. R. Civ. P. 15(a); Manzarek v. St. 11 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 12 II. Discussion 13 Defendants move this Court to dismiss the instant action for three reasons: (1) Plaintiffs lack 14 Article III standing to assert a claim under the Video Privacy Protection Act (“VPPA”), (2) Plaintiffs 15 failed to state a claim upon which relief can be granted, and (3) Australia is a more convenient 16 forum. The Court considers these arguments in order and finds that Plaintiffs sufficiently pleaded 17 standing and a claim under the VPPA. The Court also finds that Defendants have failed to 18 demonstrate that Australia is a more convenient forum. 19 A. Plaintiffs Allege Sufficiently Their Article III Standing Under the Video Privacy Protection Act. 20 21 “[T]o establish standing, a plaintiff must show [] that he suffered an injury in fact that is 22 concrete, particularized, and actual or imminent.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 23 (2021). In the context of statutory claims, there is Article III standing if plaintiff allegedly suffered 24 “concrete harm” as a result of “defendant’s violation of” the statute. Id. at 425–26. “[C]oncrete 25 injuries” include not only “physical harms and monetary harms,” but also “injuries with a close 26 relationship to harms traditionally recognized as providing a basis for lawsuits in American courts,” 27 such as “disclosure of private information.” Id. at 425. 28 1 Violation of the VPPA gives rise to Article III standing. See 18 U.S.C. § 2710(b)(1) 2 (prohibiting “[a] video tape service provider [from] knowingly disclos[ing], to any person, 3 personally identifiable information concerning any consumer of such provider”); Eichenberger v. 4 ESPN, 876 F.3d 979, 984 (9th Cir. 2017) (“Every VPPA violation presents the precise harm and 5 infringes the same privacy interests Congress sought to protect by enacting the VPPA.”) (cleaned 6 up). 7 The parties disagree as to whether Plaintiffs’ likely use of Defendants’ videos affords them 8 Article III standing to assert a claim under the VPPA. Defendants argue that the statute does not 9 grant Plaintiffs standing because they are “content creators,” and content creators watch or download 10 videos from Defendants’ website “for the express purpose of using and repurposing that content for 11 public use.” Mot. at 8–9. Plaintiffs respond that they “do not allege that they watched [Defendants’] 12 videos solely in public or downloaded [Defendants’ videos] solely for public use.” Opp’n at 4–5. 13 Assuming the factual allegations in the FAC are true and drawing all reasonable inferences in 14 Plaintiff’s favor, the Court finds that Plaintiffs have adequately alleged Article III standing to bring a 15 claim under the VPPA. Plaintiffs allege in unambiguous terms that this action concerns Defendants’ 16 disclosure of their “personal” video-viewing habits and activities. FAC ¶ 1. Moreover, although 17 Plaintiffs also allege that Defendants market their videos to “content creators,” id. ¶ 2, it is 18 reasonable to infer that even content creators watch or download such videos with non-public 19 purpose or use in mind4 or that users who are not content creators subscribe for Defendants’ videos 20 for non-commercial purposes. Further, Plaintiffs’ allegations allow the reasonable inference that they 21 watched or downloaded Defendants’ videos in the privacy of their homes or other non-public spaces. 22 Absent allegations that Plaintiffs watched or downloaded Defendants’ videos for solely public use or 23 only in public spaces, see, e.g., Osheske v. Silver Cinemas Acquisition Co., 700 F. Supp. 3d 921 24 (C.D. Cal. 2023) (holding that the VPPA does not protect public acts like attending a theater), the 25 26

27 4 Defendants’ Exhibit A, of which the Court takes judicial notice, contains a quote from a reviewer saying, 28 “Envato Elements is one of those platforms that I log onto on a daily basis even when I don’t need to design 1 Court finds that Plaintiffs have alleged sufficiently their Article III standing to bring a claim under 2 the VPPA. 3 Accordingly, the Court DENIES the Motion to the extent that it is based on Rule 12(b)(1). 4 B. Plaintiffs Allege Sufficiently a Claim Under the Video Privacy Protection Act. 5 Defendants argue that Plaintiffs have failed to allege a plausible claim under the VPPA. To 6 do so, Plaintiff must allege that “(1) a defendant is a video tape service provider, (2) the defendant 7 disclosed ‘[PII] concerning any customer’ to ‘any person,’ (3) the disclosure was made knowingly, 8 and (4) the disclosure was not authorized by section 2710(b)(2).”5 Mollett v. Netflix, Inc., 795 F.3d 9 1062, 1066 (9th Cir. 2015). 10 i. Plaintiffs Allege Sufficiently that Defendants Are a Video Tape Service Provider. 11 12 A “video tape service provider” is “any person, engaged in the business. . . of rental, sale, or 13 delivery of prerecorded video cassette tapes or similar audio visual materials.” 18 U.S.C. § 14 2710(a)(4). 15 Defendants argue that because the number of videos on their website is “dwarfed” by the 16 number of other assets, this Court should find that they are not “engaged in the business . . . of 17 rental, sale, or delivery” of videos and therefore they are not a “video tape service provider” under 18 the statute. Mot. at 11; Reply at 4–5. Plaintiffs assert that they have alleged that delivery and sale of 19 videos is a focus of Defendants’ work. Opp’n at 7–9. 20 Looking within the four corners of the FAC and the judicially noticed Exhibits, the Court 21 finds Plaintiffs’ allegations about Defendants being a video tape service provider sufficient. 22 Plaintiffs allege that Defendants’ website “features over one hundred thousand prerecorded videos,” 23 FAC ¶¶ 2, 20, and that they generate revenue by “offering paid subscriptions to this video library,” 24 id. ¶ 3. Plaintiffs also allege that they signed up for Defendants’ services “in exchange for access to 25 [Defendants’] library of prerecorded videos.” Id. ¶¶ 8, 9. Moreover, Exhibit A contains a quote from 26

27 5 Defendants do not make any argument on the third element, i.e., whether the disclosure of Plaintiffs’ PII 28 was made knowingly. As such, the Court will not analyze whether Plaintiffs’ allegations satisfy the 1 an individual, who appears to be an “author” of video templates available on Defendants’ website, 2 saying, “I’ve seen people use by templates for commercials, corporate videos, video greetings for 3 customers . . . pretty much anything you can think of.” ECF No. 23-2 at 3 (emphases added); see 4 ECF No. 23-3 (Exhibit B, repeatedly referring to “videos”); ECF No. 23-4 (Exhibit B, listing the 5 number of each type of audio-visual asset at 6,491,216 stock videos, 119,112 video templates, 6 193,116 music, and 743,497 sound effects); ECF No. 23-5 (Exhibit C, presenting “Royalty-Free 7 Stock Videos”); ECF No. 23-6 (Exhibit D, presenting “Editable Video Templates”). Further, in 8 terms of the number of assets for each category of creative assets in Defendants’ website, the Courts 9 notes that stock videos, counted at about 6.5 million assets, is second only to photos, which is around 10 eleven million assets. See generally ECF No. 23-4 (Exhibit C). The Court also notes that stock 11 videos appear first under the header “Browse by category” on Defendants’ website, whereas photos 12 do not appear until much farther down (or to the side). Id. Assuming the truth of Plaintiffs’ 13 allegations and drawing all reasonable inferences in their favor, the Court finds that Defendants are 14 “engaged in the business of” the sale or delivery of video content and qualify as a video tape service 15 provider. The statute does not require that the sale or delivery of video content be the primary focus 16 of the business, and the Court will not add this requirement. 17 But even if it was required that Defendants be “substantially involved in the conveyance of 18 video content to consumers [and] also significantly tailored to serve that purpose,”6 as some district 19 courts have interpreted the statute, see In re Vizio, Inc., Consumer Priv. Litig., 238 F. Supp. 3d 1204, 20 1221 (C.D. Cal. 2017), Plaintiffs’ allegations are sufficient to establish this. 21 Defendants assert that delivering video content is not “necessary to the Envato experience” 22 because “designers could pay for creative assets on Envato without ever downloading a single 23

24 6 Defendants further support their argument by citing Carroll v. Gen. Mills, Inc., No. 23-cv-1746-DSF- 25 MRWx, 2023 WL 4361093 (C.D. Cal. June 26, 2023) and Cantu v. Tapestry, Inc., No. 22-cv-1974-BAS- DDL, 2023 WL 4440662 (S.D. Cal. July 10, 2023). The defendants in these cases, however, are 26 distinguishable from Defendants here. In Carroll, the defendant General Mills manufactured food products, such as cereals and yogurt, 2023 WL 4361093, at *3, and in Tapestry, Inc., the defendant did business as the 27 luxury handbag brand Coach, 2023 WL 4440662, at *1. But here, Defendants sells “creative assets,” which include millions of videos. ECF Nos. 23-3 (Exhibit B), 23-4 (Exhibit C). This difference, as well as Plaintiffs’ 28 allegations, permit the reasonable inference that sale of videos constitutes at least “a focus” of Defendants’ 1 video.” Mot. at 11. This argument is unavailing. Neither the FAC nor the judicially noticed Exhibits 2 show which of Defendants’ assets make up the majority of their sales or revenue, and it is improper 3 for the Court to make such a finding at this stage of the action. 4 For the foregoing reasons, the Court finds that Plaintiffs allege sufficiently that Defendants 5 are a video tape service provider under section 2710(a)(4). 6 ii. Plaintiffs Allege Sufficiently that Defendants Disclosed Personally Identifiable Information. 7 8 The VPPA defines “personally identifiable information” to include “information which 9 identifies a person as having requested or obtained specific video materials or services from a video 10 tape service provider.” 18 U.S.C. § 2710(a)(3). The Ninth Circuit held that “‘personally identifiable 11 information’ means only that information that would ‘readily permit an ordinary person to identify a 12 specific individual’s video-watching behavior.’” Eichenberger, 876 F.3d at 985. Some courts have 13 found in the context of trackers like the Meta Pixel, the transmitted information needs to be 14 unencrypted. Sellers v. Bleacher Rep., Inc., No. 23-cv-00368-SI, 2023 WL 4850180, at *4 (N.D. 15 Cal. July 28, 2023). 16 Accordingly, for their complaint to survive, Plaintiffs must allege (1) that Defendants 17 transmitted such data that permits an ordinary person to identity a specific individual and (2) that 18 data permits the ordinary person to ascertain the specific individual’s video-watching behavior. 19 As to the first issue, Plaintiffs allege sufficiently that Defendants disclosed their unencrypted 20 Facebook IDs. FAC ¶ 37 (“The cookies that were transmitted as a result of the Meta Pixels that 21 Defendant installed on its website conveyed Plaintiffs’ and Class Members’ Facebook IDs (through 22 the c_user cookie).”) (emphasis added); see id. ¶ 43 (“The c-user [sic] cookie contains that visitor’s 23 unencrypted Facebook ID.”) (emphasis added). 24 Defendants assert that because “Plaintiffs do not allege that their names are included in their 25 Facebook profiles,” their allegation is insufficient. Reply at 3; Mot. at 13–14 (same). But the 26 applicable legal standard is whether the disclosed information “would readily permit an ordinary 27 person to identify” Plaintiffs, see Eichenberger, 876 F.3d at 985 (emphasis added) (cleaned up), not 28 whether Plaintiffs’ names will be identified. Even if the standard as interpreted by Defendants were 1 to apply, the Court finds that it is reasonable to infer from the allegations that an ordinary person will 2 identify Plaintiffs’ names with the allegedly disclosed unencrypted information.7 See FAC ¶ 28 3 (explaining that Facebook requires users to share “the name they go by in everyday life”), 44 4 (explaining that appending a person’s unencrypted Facebook ID to Facebook’s URL leads to that 5 person’s Facebook webpage). 6 As to the second issue, Plaintiffs allege sufficiently that an ordinary person could identify 7 their video-watching behavior. Id. ¶¶ 55, 61 (alleging that Defendants disclose data that contain “the 8 titles of prerecorded videos” that Plaintiffs watch or download). 9 Accordingly, the Court finds that Plaintiffs alleged sufficiently that Defendants disclosed 10 their PII as defined by the VPPA. 11 iii. Consent is a Factual Issue Not Appropriate to be Decided on a Motion to Dismiss. 12 13 The VPPA allows a video tape service provider to disclose PII of a consumer with the 14 consumer’s “informed, written consent.” 18 U.S.C. § 2710(b)(2)(B). For consent to be valid, (1) the 15 written consent must be “in a form distinct and separate from any form setting forth other legal or 16 financial obligations of the consumer”; (2) “at the election of the consumer,” the consent must be 17 either “given at the time the disclosure is sought” or “given in advance for a set period of time, not to 18 exceed 2 years or until consent is withdrawn by the consumer, whichever is sooner”; and (3) the 19 video tape service provider must provide “an opportunity, in a clear and conspicuous manner, for the 20 consumer to withdraw on a case-by-case basis or to withdraw from ongoing disclosures, at the 21 consumer’s election.” 18 U.S.C. § 2710(b)(2)(B)(i)-(iii). 22 23

24 7 This Court therefore declines to adopt the approach of the Second Circuit in Solomon. See 136 F.4th 41. The 25 Second Circuit found that an ordinary person would not be able to distinguish a video title in a line of code or identify a Facebook ID in a line of code. Id. at 54. The ordinary person that the Second Circuit envisions 26 appears to be one who is particularly unsophisticated or unmotivated to understand the information presented. This Circuit in Eichenberger v. ESPN, Inc., however, has made clear that “modern technology may indeed 27 alter—or may already have altered—what qualifies under the statute. A Facebook link or an email address may very well readily enable an ‘ordinary person’ to identify an individual.” 876 F.3d 979, 986 (9th Cir. 28 2017). And given the allegations in the FAC, this Court finds that here, the unencrypted Facebook IDs would. 1 The Defendants are unable to establish, at this stage, that consent was given. For instance, the 2 policies they state do not explicitly state that users’ personally identifiable information will be 3 disclosed to third parties. They merely state that Defendants collect information on user activity, that 4 no personally identifiable information is collected by cookies, and that Defendants will use third 5 party advertisers to serve ads. This is an insufficient basis for this Court to find that Plaintiffs 6 allegations regarding their lack of consent are implausible and require dismissal. Accordingly, the 7 Court finds that Plaintiffs have sufficiently pleaded their claim under the VPPA. 8 C. Defendants Have Not Met Their Burden Under the Forum Non Conveniens Doctrine. 9 10 “[T]he doctrine of forum non conveniens is ‘an exceptional tool to be employed sparingly,’” 11 and for which the defendant bears the burden—at times described as a heavy burden—of proving the 12 existence of an adequate alternative forum. Gutierrez v. Advanced Med. Optics, Inc., 640 F.3d 1025, 13 1029 (9th Cir. 2011). In deciding whether to dismiss an action on forum non conveniens grounds, a 14 court must examine (1) whether an adequate alternative forum exists and (2) the balance of private 15 and public interest factors favors dismissal. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th 16 Cir. 2001). “[W]here the plaintiff is a United States citizen, the defendant must satisfy a heavy 17 burden of proof.” Id. at 1443 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981). 18 i. Defendants Have Not Shown the Availability of an Adequate Forum. 19 “[A]n adequate alternative forum ordinarily exists when the defendant is amendable to 20 service of process in the foreign forum.” Id. At the same time, “[t]he foreign forum must provide the 21 plaintiff with some remedy for his wrong.” Id. 22 Defendants have only partially satisfied the threshold requirements. The first requirement is 23 met here. Mot. at 17 (“Defendants are amendable to service of process in Australia, where 24 Defendants reside.”). The Court, however, does not find that Defendants have satisfied the second 25 requirement. In support of its argument that Australia’s privacy laws offer remedies for Plaintiffs, 26 they cite nonbinding cases. See Mot. at 18; Reply at 8–9. Moreover, the issues raised in those cases 27 28 1 are not applicable to the instant case.8 The Court, based on these cases, cannot ascertain whether 2 Australia’s laws provide “some remedy” for the harm Plaintiffs allege. 3 Because Defendants has not shown that Australia offers remedies, however remotely, as 4 those available under the VPPA, the Court finds that Australia is not an adequate, available forum 5 for Plaintiffs’ claims. 6 ii. The Balance of Private and Public Factors Weighs Toward Retaining the Action. 7 8 Courts consider the following private interest factors when determining whether to grant 9 dismissal under forum non conveniens: 10 (1) the residence of the parties and the witnesses; 11 (2) the forum’s convenience to the litigants; (3) access to physical evidence and other sources of proof; 12 (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; 13 (6) the enforceability of the judgment; and (7) all other practical problems that make trial of a case easy, expeditious and 14 inexpensive. 15 Lueck, 236 F.3d at 1145 (internal quotation marks omitted). 16 The Court does not find any private interest factor weighing in Defendants’ favor. On the one 17 hand, Plaintiffs are residents of Florida and California.9 FAC ¶¶ 8, 9. Relatedly, to the extent that 18 Plaintiffs seek to represent a putative class of similarly situated “persons in the United States,” FAC 19 ¶ 73, it is reasonable to infer that their witnesses live in the United States. On the other hand, 20 Defendants are “located in Australia, where many of its employees—likely witnesses in this case— 21 also reside.” Id. at 18. As such, the first private interest factor is neutral. 22 As to the second private interest factor, the Court finds that it weighs toward retaining the 23 action. Plaintiffs’ choice of forum is entitled to deference. Carijano v. Occidental Petroleum Corp., 24 8 See Tansey v. Cochlear Ltd., No. 13-cv-4628 SJF SIL, 2014 WL 4676588 (E.D.N.Y. Sept. 18, 2014) 25 (referencing the Privacy Act of 1988 within the context of production of documents); Glob. Med. Sols., Ltd v. 26 Simon, No. 12-cv-04686-MMM (FMOx), 2013 WL 12371339 (C.D. Cal. Jan. 10, 2013) (involving claims unrelated to disclosure of private information); McGechie v. Atomos Ltd., No. 2:22-cv-01812-DJC-DB, 2024 27 WL 1054924 (E.D. Cal. Mar. 11, 2024) (same); Silvertip Partners, LLC v. Proactive Preparedness, Inc., No. LACV 16-5826-VAP (ASx), 2018 WL 5099747 (C.D. Cal., 2018) (same). 28 9 Although Defendants point to Plotsker’s residence in Florida, Mot. at 18–19, the Court defers to his decision 1 643 F.3d 1216, 1227 (9th Cir. 2011) (“When a domestic plaintiff initiates litigation in its home 2 forum, it is presumptively convenient.”) (citing Piper Aircraft Co., 454 U.S. at 255–56). Moreover, 3 Defendants’ Privacy Policy indicates that their lawyers are located, among other countries, the 4 United States. ECF No. 23-11 at 4. Insofar as Defendants have relied on professionals in the United 5 States, litigating this action in California appears to be more convenient than litigating in Australia. 6 Defendants argue that because Plaintiffs agreed to the forum selection provision in 7 Defendants’ User Terms, “the weight of any inconvenience to them” is lessened. Mot. at 19. As the 8 Court held in Section II.B.iii., supra, however, whether Plaintiffs agreed to Defendants’ Privacy 9 Policy, Cookie Policy, or Terms of Use is a factual issue not appropriate at the current stage of 10 litigation. As such, the Court does not consider at this time whether the forum selection provision 11 tips the scale one way or another. 12 As to the parties’ access to physical evidence and other sources of proof, the Court finds that 13 this factor is neutral. Mot. at 19 (“Because . . . the evidence is likely to be exclusively electronic, [the 14 third] private interest factor[] [is] neutral.”) 15 As to whether unwilling witnesses can be compelled to testify, the Court finds this factor 16 weighing toward retaining the action. Defendants contend that “[b]ecause the likely witnesses in this 17 action are Envato employees who are under Envato’s control,” the fourth private interest factor is 18 “neutral.” Id. In contrast, Plaintiffs argue that this factor weighs toward them because they “would 19 seek to compel testimony from Meta,” who they believe will be an unwilling witness. Opp’n at 19– 20 20 (citing Rule 45(b)(2), a court’s subpoena power). Because this Court has the subpoena power to 21 compel a domestic unwilling witnesses to testify—and more conveniently so—the fourth private 22 interest factor weighs in Plaintiffs’ favor. 23 As to the remaining three private interest factors—the cost of bringing witnesses to trial; the 24 enforceability of the judgment; and all other practical problems that make trial of a case easy, 25 expeditious, and inexpensive—Defendants state only that they are “neutral” but does not provide any 26 supporting facts. Id.; see generally Reply (lacking any further supporting arguments or facts). In 27 contrast, Plaintiffs rely on Federal Rule of Civil Procedure 43 to argue that the availability of remote 28 testimony tips the scale toward Plaintiffs as to the fifth factor. Absent any further facts to consider, 1 the Court finds that the fifth private interest factor weighs toward retaining the action and the sixth 2 and seventh factors neutral. 3 Courts also examine the following five public interest factors when determining whether to 4 dismiss under forum non conveniens: 5 (1) local interest of lawsuit; (2) the court’s familiarity with governing law; 6 (3) burden on local courts and juries; (4) congestion in the court; and 7 (5) the costs of resolving a dispute unrelated to this forum. 8 Lueck, 236 F.3d at 1147. 9 As to the first and second public interest factors, the Court finds that there is a strong local 10 interest in this action and that it is familiar with the governing law. United States Congress enacted 11 the VPPA, FAC ¶ 16, and the parties rely extensively on case law from California. See generally 12 Mot.; Opp’n. Although Defendants argue that “Plaintiffs could assert their purported privacy 13 interests by invoking Australia’s privacy laws,” Plaintiffs can do so equally in California—and have 14 done so by filing suit here. See generally FAC. 15 As to the third and fourth public interest factors, although this District’s docket is congested, 16 this Court does not use forum non conveniens as a means to lessen its load. See Gates Learjet Corp. 17 v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) (“The forum non conveniens doctrine should not be 18 used as a solution to court congestion; other remedies, such as placing reasonable limitations on the 19 amount of time each side may have to present evidence, are more appropriate.”). 20 As to the fifth public interest factors, the parties do not engage with it in any meaningful 21 way. Thus, the Court finds this factor neutral. 22 In sum, the Court does not find that Australia is a more proper forum for this Action. As 23 such, the Court DENIES the Motion to the extent that it is based on the forum non conveniens 24 doctrine. 25 26 27 / / / 28 / / / 1 CONCLUSION 2 | For the foregoing reasons, the Court hereby ORDERS as follows: 3 1. Defendants’ Request for Judicial Notice is GRANTED; and 4 2. Defendants’ Motion to Dismiss is DENIED. 5 6 IT IS SO ORDERED. 7 8 Dated: August 26, 2025 9 10 MAAME EWUSI-MENSAH FRIMPONG United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28