1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 TRISHA ICKES, Case No. 23-cv-00803-SI

7 Plaintiff, ORDER GRANTING DEFENDANT’S

MOTION TO TRANSFER AND

8 v. TRANSFERRING THIS CASE TO THE

SOUTHERN DISTRICT OF NEW

9 AMC NETWORKS INC., YORK 10 Defendant. Re: Dkt. No. 11

11

12 On June 23, 2023, the Court held a hearing on defendant AMC Network, Inc.’s motion to 13 dismiss or transfer this case to the Southern District of New York pursuant to the first-to-file rule 14 and/or 28 U.S.C. § 1404(a). For the reasons set forth in this order, the Court GRANTS defendant’s 15 motion to transfer. 16 17 BACKGROUND 18 AMC Networks Inc. (“AMC+”) is a Delaware corporation with its principal executive office 19 located in New York, New York. Compl. ¶ 19 (Dkt. No. 1). AMC+ “is a media production and 20 distribution company that sells its content on multiple platforms.” Id. ¶ 2. Its business includes 21 “streaming video services, whereby AMC+, through its website, the AMC+ application, and on- 22 demand channels such as Apple TV+ and Amazon Prime, makes prerecorded audiovisual materials 23 (i.e., videos) available for consumers to request and obtain.” Id. ¶ 3. In order to access videos, a 24 consumer must create an account with AMC+, which requires submitting personal information such 25 as a name, email address, billing address, and payment information. Id. ¶ 52. If a consumer accesses 26 AMC+ content through a third-party channel, such as Apple TV+, the consumer must agree to have 27 their personal information shared between AMC+ and the third party. Id. 1 AMC+ discloses information about its subscribers to third party Meta Platforms, Inc., 2 formerly known as Facebook. AMC+ discloses information via a programming code called the 3 Meta Pixel, which was created by Meta and installed by AMC+ on the AMC+ website. The Meta 4 Pixel “allows online businesses like AMC+ to build detailed profiles about its users by collecting 5 information about how they interact with their websites and facilitates the service of targeted 6 advertising to them.” Id. ¶ 34. The information AMC+ shares with Meta includes a consumer’s 7 Facebook ID (“FID”), which is a “unique sequence of numbers linked to that individual’s Facebook 8 profile,” and thus “identifies a consumer more precisely than a name,” as well as information about 9 the titles of the videos the consumer requested or obtained on the AMC+ website. Id. ¶¶ 4-5. The 10 AMC+ website does not inform consumers of AMC+’s use of the Meta Pixel or its practice of 11 sharing consumers’ personal information and video content choices with Meta. Id. ¶¶ 59-64. In 12 addition to disclosing consumers’ information with Meta, AMC+ retains records of consumers’ 13 information far beyond the time period necessary for the purposes for which the information was 14 collected. Id. ¶ 16. 15 16 I. Ickes et al. v. AMC Networks Inc., 3:23-cv-00803-SI (N.D. Cal.) 17 On February 22, 2023, Trisha Ickes, a resident of Richmond, California, filed this lawsuit 18 against AMC+ alleging claims under the federal Video Privacy Protection Act, 18 U.S.C. § 2710 19 (“VPPA”), and California law. 20 Ickes is an AMC+ consumer and first subscribed to AMC+ in 2021. Id. ¶ 76.1 Ickes also 21 uses Facebook and has had a Facebook account since 2009. Id. ¶ 79. Ickes alleges that AMC+ 22 unlawfully disclosed her “personally identifiable information” (“PII”) to Meta after she signed up 23 for an AMC+ subscription and used the AMC+ website. Ickes also alleges that AMC+ unlawfully 24 retained her PII beyond the time period necessary for the purposes for which the PII was collected. 25 26

27 1 AMC+ states in its reply that “[a]s communicated to counsel, AMC+ has diligently 1 Ickes seeks to represent a nationwide class for the VPPA cause of action and a California class for 2 the California claims. 3 4 II. McCoy et al. v. AMC Networks, Inc., 1:23-cv-00441 (S.D.N.Y.) 5 On January 18, 2023, approximately one month before Ickes was filed, Gerald McCoy, 6 Nicholas Nuñez, and Andy Germuga filed a putative class action lawsuit against AMC+ in the 7 Southern District of New York. The McCoy complaint arose out of the same facts as those later 8 alleged in Ickes, namely that AMC+ unlawfully disclosed personal information about AMC+ 9 subscribers to Meta via the Meta Pixel, and that AMC+ unlawfully retained that information. Def’s 10 Request for Judicial Notice, Ex. 1 (Dkt. No. 12-1).2 McCoy asserted claims under the VPPA and 11 Minnesota and New York law, and the VPPA claim was brought on behalf of a nationwide class 12 and the Minnesota and New York claims were brought on behalf of the Minnesota and New York 13 subclasses. Id. On March 24, 2023, the McCoy plaintiffs voluntarily dismissed the complaint 14 without prejudice. Id., Ex. 2 (Dkt. No. 12-2). 15 16 III. Vela et al. v. AMC Networks, Inc., 1:23-cv-02524 (S.D.N.Y.) 17 Also on March 24, 2023, the same lawyers who filed McCoy filed a new lawsuit against 18 AMC+ on behalf of two of the McCoy named plaintiffs (Nicholas Nuñez and Andy Germuga) and 19 a new third named plaintiff, Ronald Vela. Id., Ex. 3 (Dkt. No. 12-3). The Vela complaint is virtually 20 identical to the McCoy complaint, and the Vela plaintiffs filed a “Related Case Statement” stating 21 that “[t]hese allegations are substantially identical in both filings, but for the substitution of Plaintiff 22 Vela for Plaintiff McCoy.” Id., Ex. 2. Vela was reassigned to the judge who had presided over 23 McCoy, Judge Andrew Carter. In Vela, AMC+ has filed a motion to compel arbitration that has 24 been fully briefed.3 25

26 2 The Court GRANTS defendant’s unopposed request for judicial notice of the McCoy and Vela filings. 27 1 DISCUSSION 2 AMC+ moves to transfer this action pursuant to both the “first-to-file” rule and 28 U.S.C. 3 § 1404(a). AMC+ argues that dismissal or transfer is in the interest of judicial efficiency and would 4 avoid the risk of conflicting judgments because this case and Vela raise the same facts and claims 5 about AMC+’s use of the Meta Pixel on the AMC+ website and AMC+ is already litigating these 6 issues in New York. 7 8 I. First-to-File Rule 9 Under the “first-to-file” rule, a district court has discretion to “transfer, stay, or dismiss an 10 action when a similar complaint has already been filed in another federal court.” Alltrade, Inc. v. 11 Uniweld Prods., Inc., 946 F.2d 622, 623 (9th Cir. 1991). The rule applies when “a complaint 12 involving the same parties and issues has already been filed in another district.” Id. at 625. Courts 13 look to three factors when applying the first-to-file rule: “(1) the chronology of the two actions; (2) 14 the similarity of the parties, and (3) the similarity of the issues.” Z–Line Designs, Inc. v. Bell’O Int'l, 15 LLC, 218 F.R.D. 663, 665 (N.D. Cal. 2003). The parties and issues need not be identical for the 16 first-to-file rule to apply. See Kohn Law Gp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 17 1237, 1240 (9th Cir. 2015). Rather, the crucial inquiry is whether the parties and issues substantially 18 overlap. Id. The rule was designed to promote judicial economy, and therefore “is not a rigid or 19 inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of 20 sound judicial administration.” Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 21 1982). 22 23 A. First Case 24 AMC+ argues that Vela should be considered the first-filed case because McCoy was filed 25 first and Vela is a continuation of McCoy. AMC+ asserts that the dismissal of McCoy and filing of 26 Vela on the same day should be treated as a functional amendment of the complaint because the 27 only difference between McCoy and Vela was the substitution of one named plaintiff. AMC+ also 1 emphasizes that Vela was related to McCoy and assigned to the same judge who presided over 2 McCoy. 3 Ickes argues that McCoy is moot for the purposes of the first-to-file rule because it was 4 voluntarily dismissed and thus that this case is the first-filed. Ickes relies on cases where courts 5 have declined to transfer cases pursuant to the first-to-file rule because the earlier-filed case was no 6 longer pending in another district. See Alul v. Am. Honda Motor Co., Inc., No. 16-cv-04384-JST, 7 2016 WL 7116934, at *5 (N.D. Cal. Dec. 7, 2016) (holding first-to-file rule did not apply and 8 declining to transfer case to Central District of California “where there is no active case in the 9 Central District and where no substantive rulings were ever issued”). 10 The Court finds that due to the unusual procedural history of McCoy and Vela, it makes 11 sense to treat those cases as one action for purposes of the first-to-file rule. If there were no currently 12 pending case in the Southern District of New York, the Court would agree with Ickes that McCoy 13 would be irrelevant to the first-to-file analysis. However, because Vela is pending before the same 14 judge as McCoy, because McCoy and Vela are identical except for the substitution of one plaintiff, 15 and because Vela was filed the same day that McCoy was dismissed, the Court agrees with AMC+ 16 that the cases should be considered together and that the filing date of McCoy is relevant. The 17 Court thus considers the Vela case to be the first-filed case for the purpose of the first-to-file rule. 18 19 B. Similarity of Parties 20 The Court also finds that the second factor – similarity of parties – is met. AMC+ is the 21 same and only defendant in both cases. The plaintiffs in both cases are AMC+ subscribers who 22 accessed video content from the AMC+ website and also had Facebook accounts. The nationwide 23 putative VPPA class in this case completely overlaps with the nationwide class asserted in Vela. 24 Compare Ickes Compl. ¶ 85 (“All persons in the United States who subscribed to AMC+, requested 25 or obtained video content from the AMC+ website, and used Facebook during the time Meta’s Pixel 26 was active on AMC+”), and Vela Compl. ¶ 82 “(All persons in the United States who subscribed to 27 AMC+, requested or obtained video content from the AMC+ website, and used Facebook during 1 The Court is not persuaded that the existence of state law subclasses – a California class in 2 Ickes and Minnesota and New York classes in Vela – precludes a finding of substantial similarity of 3 parties. See Young v. L'Oreal USA, Inc., 526 F. Supp. 3d 700, 705 (N.D. Cal. 2021) (“The second 4 factor merely demands that the parties be substantially similar and need not be identical.”). Ickes 5 argues that Avery v. TEKsystems, Inc., No. 22-cv-02733-JSC, 2022 WL 3998499 (N.D. Cal. Aug. 6 31, 2022), is “on point” and that the Court should conclude, as Judge Corley did in Avery, that there 7 is ”minimal” overlap between the two cases because of the existence of different state law 8 subclasses. However, Avery did not involve two cases with identical federal nationwide classes. 9 Instead, the plaintiffs in Avery asserted purely California wage and hour claims, and Judge Corley 10 was considering whether to transfer Avery to another district where a case (Thomas) was pending 11 that asserted wage and hour claims under the federal Fair Labor Standards Act and Pennsylvania 12 law. Judge Corley found that there was, at most, at 13% overlap in plaintiffs because some of the 13 Avery plaintiffs had opted into the Thomas FLSA class before the opt-in deadline had passed. See 14 id. at *3 (“Here, because the period to join the Thomas action has closed, the proper comparators 15 are the putative class in Avery and the opt-in collective of plaintiffs in Thomas as it stands today . . . 16 the overlap in potential plaintiffs between the two actions is roughly 13% . . . 87% of the putative 17 Avery class is not and will not be represented in the Thomas action. These putative plaintiffs 18 represent an overwhelming majority of the Avery class and would not be precluded by any finding 19 in the Thomas Action. Thus, pausing or transferring the Avery action would not promote 20 efficiency.”).4 Here, in contrast, this case and Vela are both brought on behalf of the same putative 21 22

23 4 For similar reasons, plaintiffs’ reliance on Wilkie v. Gentiva Health Services, No. 10-cv- 01451-FCD-GGH, 2010 WL 3703060 (E.D. Cal. Sept. 16, 2010), is misplaced. In that case, Judge 24 Damrell denied a motion to transfer a wage and hour case because he found that “[o]n balance, there are more dissimilarities in the issues than similarities.” Id. at *5. In addition to the existence of 25 separate state law subclasses, it was not clear whether the proposed FLSA class in Wilkie included the same types of employees as the earlier-filed case. See id. at *3 (“As plaintiff argues, some 26 employees included in the instant action may not ultimately be included in the Rindfleisch action. For example, it is unclear whether licensed vocational nurses, physicians assistants, and monitor 27 technicians which likely fit under plaintiff’s class definition, also fit within the Rindfleisch class. 1 nationwide class where there is close to 100% overlap, and thus rulings in Vela would have a 2 preclusive effect in this case, and vice versa. 3 4 C. Similarity of Issues 5 This case and Vela also raise the same core factual issues and the same or similar legal issues. 6 Both cases involve AMC+’s use of the Meta Pixel and disclosure and retention of consumers’ 7 personal information. In both cases, AMC+ contends that the plaintiffs’ claims are subject to 8 arbitration clauses. If a court determines that the claims are not subject to arbitration, the common 9 legal questions will include whether a nationwide VPPA class should be certified and whether 10 AMC+’s use of the Meta Pixel violated the VPPA. To have two courts resolve these questions not 11 only presents the possibility of conflicting judgments, but also a waste of judicial resources. 12 Ickes emphasizes that this case involves California claims and Vela involves New York and 13 Minnesota claims. However, the state law claims under California, New York, and Minnesota law 14 contain similar elements to a VPPA claim (such as whether disclosure of information was made 15 knowingly and without the consumers’ consent), and in the case of the Ickes’ plaintiffs’ claim under 16 the Unfair Competition Law (“UCL”), a violation of the VPPA also constitutes a violation of the 17 UCL. See e.g., Ickes Compl. ¶¶ 14-16 (alleging violations of VPPA and California law based on 18 same facts and elements); Vela Compl. ¶¶ 10-12 (alleging violations of VPPA, New York and 19 Minnesota law based on same facts and elements). The gravamen of the federal and state claims is 20 the same: did AMC+ violate the law by disclosing consumers’ information to Meta, and by retaining 21 consumers’ information longer than necessary? 22 Ickes also argues that this case “includes significant issues to be determined related to the 23 value of PII and economic damages that are absent from Vela.” Opp’n at 11 (Dkt. No. 18). Ickes 24 notes that the Vela plaintiffs are seeking statutory damages, while the plaintiffs here allege that their 25 PII “has value that AMC’s wrongful acquisition and use of the PII prevented them from realizing” 26 and “AMC’s conduct resulted in economic harm” to consumers who either would not have 27 subscribed to AMC+ or paid more for their AMC+ subscriptions than they otherwise would have if 1 However, the first-to-file rule does not require that all factual and legal issues be identical, just that 2 there be “substantial overlap.” Kohn Law Gp., 787 F.3d at 1240. Differences in the types of 3 damages sought do not detract from the fact that both cases involve the same facts and the same or 4 similar legal issues. 5 In light of the above, the Court concludes that transfer the case to the Southern District of 6 New York based on the first-to-file rule will “maximize ‘economy, consistency, and comity.’” Id. 7 This Court grants AMC+’s motion to transfer based on the first-to-file rule. As discussed below, 8 the Court also finds that transfer is appropriate under 28 U.S.C. § 1404(a). 9 10 II. 28 U.S.C. § 1404(a) 11 “For the convenience of parties and witnesses, in the interest of justice, a district court may 12 transfer any civil matter to any other district or division where it might have been brought.” 28 13 U.S.C. § 1404(a). The purpose of § 1404(a) is to “prevent the waste of time, energy, and money 14 and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” 15 Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citations and quotation omitted). 16 To support a motion to transfer, the defendant must establish: (1) that venue is proper in the 17 transferor district; (2) that the transferee district is one where the action might have been brought; 18 and (3) that the transfer will serve the convenience of the parties and witnesses, and will promote 19 the interests of justice. See Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 20 503, 506 (C.D. Cal. 1992). The parties do not dispute that venue is proper in this district and that 21 this case could have been brought in the Southern District of New York. The disagreement centers 22 on whether transfer will serve the convenience of the parties and witnesses and promote justice. 23 In the Ninth Circuit, district courts have “discretion to adjudicate motions for transfer 24 according to an ‘individualized, case-by-case consideration of convenience and fairness.’” Jones v. 25 GNC Franchising Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 26 U.S. 22, 29 (1988)). “In this district, courts typically consider the following factors: (1) plaintiffs’ 27 choice of forum, (2) convenience of the parties, (3) convenience of the witnesses, (4) ease of access 1 with other claims, (7) any local interest in the controversy, and (8) the relative court congestion and 2 time to trial in each forum.” California v. Bureau of Land Mgmt., No. 18-CV-00521-HSG, 2018 3 WL 3439453, at *2 (N.D. Cal. July 17, 2018) 4 The Court finds that on balance, these factors weigh in favor of transfer. As to plaintiff’s 5 choice of forum, “[w]hen an individual brings a derivative suit or represents a class, the named 6 plaintiff’s choice of forum is given less weight.” Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 7 1987); see also Cardoza v. T-Mobile USA Inc., No. 3:08-cv-05120-SC, 2009 WL 723843, at *4 8 (N.D. Cal. Mar. 18, 2009) (stating that “[c]ourts tend to do so [give plaintiff’s choice of forum less 9 weight] where the plaintiff seeks to represent a nationwide class” and transferring California state 10 law class action to the Western District of Washington pursuant to first-to-file rule and 28 11 U.S.C. § 1404(a)). The Court gives some, but not much, deference to Ickes’ choice of forum. 12 The Court finds that the second and third factors support transfer. This district is more 13 convenient for Ickes personally, although the Court notes that AMC+ states that it will depose Ickes 14 in California if a deposition is needed. However, based on the nature of her claims – which focus 15 on AMC+’s decision to install the Meta Pixel on its website and its policies and practices regarding 16 disclosure and retention of consumer information – the Court anticipates that much of the witness 17 testimony will come from AMC+, which is headquartered in New York. “Since the allegations in 18 this case focus on defendant’s conduct, the convenience of witnesses favor transfer.” Id. at *5. The 19 fourth factor – access to evidence – is neutral as the parties agree that most if not all of the evidence 20 is electronically available. 21 The fifth factor is largely neutral because both courts are familiar with federal law and the 22 state law claims share key elements and arise out of the same facts. While this Court has familiarity 23 with California law, the Vela case already includes Minnesota law claims, and “other federal courts 24 are fully capable of applying California law.” Id. 25 Most importantly, “[t]o permit a situation in which two cases involving precisely the same 26 issues are simultaneously pending in different District Courts leads to the wastefulness of time, 27 energy and money that § 1404(a) was designed to prevent.” Continental Grain Co. v. The FBL– 1 and assert the same federal claims and similar state law claims. AMC+ states that it will seek to 2 || relate and/or consolidate this case with Vela upon transfer. 3 Finally, neither party discusses the local interest in the controversy or local court congestion 4 and thus the Court does not consider these factors. 5 6 7 CONCLUSION 8 For the foregoing reasons and for good cause shown, the Court GRANTS AMC+’s motion 9 to transfer and TRANSFERS this case to the Southern District of New York. 10 11 IT IS SO ORDERED. 12

13 Dated: June 30, 2023 a SUSAN ILLSTON 14 United States District Judge 15 16

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