United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
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.
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
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
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
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
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.
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.
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.