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Throneburg v. Charter Communications, Inc.

United States District Court, E.D. Missouri, Eastern Division

October 10, 2019

DEREK THRONEBURG, Plaintiff,
v.
CHARTER COMMUNICATIONS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

         Plaintiff Throneburg was a Charter subscriber from March 2003 through April 2012. He alleges that Charter failed to disclose that it would sell subscribers' personally identifiable information (“PII”) and that Charter actually sold his PII “hundreds of times per month, ” both while he was a subscriber and after he terminated his service relationship with Charter. (Doc. #4 at ¶¶ 14, 17, 24). Throneburg argues that Charter's actions violate the Cable Communications Act of 1984 (“Cable Act”), 47 U.S.C. § 551 et seq. He also brings state-law claims for conversion and unjust enrichment.

         Charter moves to dismiss all of Throneburg's claims, arguing that all claims are time-barred, that Cable Act claims relating to disclosure fail to state a claim, that the state-law claims fail to state a claim, and that Throneburg fails to allege an injury-in-fact.

         Because Throneburg was a Charter customer more than six years ago, some of his claims (Counts I-III) are time-barred. However, Throneburg also alleges recent disclosure violations (in Counts IV-V) that are not time-barred, and these allegations do state a claim that is plausible on its face. Finally, Throneburg's state-law claims (Counts VI-VII) fail to state a claim upon which relief can be granted. As a result, I will grant in part and deny in part Charter's motion to dismiss.

         Legal Standard

         The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint. When ruling on a motion to dismiss, I must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Fed.R.Civ.P. 12(b)(6); see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). This is so “even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); see Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.”). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim that is plausible on its face.” Twombly, 550 U.S. at 570. To survive a motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555.

         Discussion

         Throneburg asserts that Charter committed five violations of the Cable Act. First, Charter allegedly failed to deliver privacy notifications, in violation of § 551(a)(1), both when Throneburg entered into a service agreement with Charter (Count I) and at least once a year thereafter during his subscription (Count II). He further alleges that even if Charter had provided him with its privacy notifications while a subscriber, they were not clearly and conspicuously worded and as a result violated § 551(a)(1)(A)-(E) (Count III). He also alleges that Charter failed to obtain his prior written or electronic consent before disclosing his PII, in violation of § 551(c)(1) (Count IV). Finally, he alleges that Charter failed to provide its subscribers an opportunity to prohibit or limit such disclosures, in violation of § 551(c)(2)(C) (Count V). Throneburg also asserts claims for conversion (Count VI) and unjust enrichment (Count VII) under Missouri law arising from Charter's alleged sale of his PII.

         Cable Act Claims

         Standing

         Charter argues that Throneburg fails to allege an injury in fact sufficient to establish Article III standing. Article III of the Constitution limits the jurisdiction of the federal courts to cases or controversies. A plaintiff has the burden of establishing standing by demonstrating (1) an injury in fact, (2) fairly traceable to the defendant's challenged conduct, and (3) that is likely to be redressed by a judicial decision in the plaintiff's favor. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992)). “Article III requires a concrete injury even in the context of a statutory violation.” Id. at 1549. A concrete injury must “actually exist, ” and it must be “real” and not “abstract.” Id. at 1548.

         Throneburg's allegations are sufficient to demonstrate standing in this case. In Braitberg v. Charter Commc'ns, Inc., the Eighth Circuit Court of Appeals held that a plaintiff bringing claims under the Cable Act failed to allege an injury in fact because he claimed “only that Charter violated a duty to destroy [PII] by retaining certain information longer than the company should have kept it.” 836 F.3d 925, 930 (8th Cir. 2016). However, Braitberg specifically noted that “[plaintiff] does not allege that Charter has disclosed the information to a third party, that any outside party has accessed the data, or that Charter has used the information in any way during the disputed period, ” implying that these allegations would be sufficient to confer standing. Id. Since this is exactly what Throneburg has alleged, he satisfies Article III's injury-in-fact requirement.

         Gubala v. Time Warner Cable, Inc., also cited by Charter, is likewise distinguishable from Throneburg's case. 846 F.3d 909 (7th Cir. 2017). In Gubala, the plaintiff alleged that Time Warner had failed to destroy his PII after he was no longer a customer. The Seventh Circuit Court of Appeals noted, “[Plaintiff's] only allegation is that the retention of the information, on its own, has somehow violated a privacy right or entailed a financial loss. There is unquestionably a risk of harm in such a case. But the plaintiff has not alleged that Time Warner has ever given away or leaked or lost any of his [PII] or intends to give it away . . . .” Id. at 910 (emphasis original). As Throneburg alleges that Charter has disclosed and sold his PII to third parties without his consent, he has standing to bring this lawsuit.

         Statute ...


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