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Perry v. Cable News Network, Inc.

United States District Court, N.D. Illinois, Eastern Division

August 25, 2014

RYAN PERRY, individually and on behalf of others similarly situated, Plaintiff,
v.
CABLE NEWS NETWORK, INC., a Delaware corporation, and CNN INTERACTIVE GROUP, INC., a Delaware corporation, Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Plaintiff Ryan Perry, individually and on behalf of others similarly situated, has sued defendants Cable News Network, Inc. and CNN Interactive Group, Inc. (collectively "defendants" or "CNN") alleging that CNN violated the Video Protection Privacy Act, 18 U.S.C. § 2710 ("VPPA"), by disclosing consumers' personally identifying information ("PII") gathered from the CNN mobile application. Defendants have moved to transfer this matter to the Northern District of Georgia under 28 U.S.C. § 1404(a).[1] For the reasons discussed below, the motion to transfer is granted.

BACKGROUND

CNN is a news organization headquartered in Atlanta, Georgia. It distributes content through television programing and a mobile software application ("app"), among other mediums. At issue in the instant case is CNN's app. Using the app, consumers can access CNN's news content on their iPhones. According to plaintiff, each time a consumer uses the app to view a news story, video clip, or headline, the app creates a log of those activities. When the user closes the app, that log is disclosed to a United Kingdom-based analytics company, Bango PLC ("Bango"), along with a unique media access control address ("MAC address") of that user's phone. Plaintiff alleges that Bango is then able to identify specific individuals and their video-viewing histories. Plaintiff alleges that this practice violates the VPPA section prohibiting companies renting, selling, or delivering video materials from disclosing "personally identifiable information, " or "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider" without that consumer's consent. 18 U.S.C. § 2710.

DISCUSSION

A motion to transfer is governed by 28 U.S.C. § 1404(a), which provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought." The court may transfer venue when: "(1) venue is proper in this district; (2) venue [and jurisdiction] are proper in the transferee district; (3) the transferee district is more convenient for both parties and witnesses; and (4) transfer would serve the interest of justice." Spread Spectrum Screening, LLC v. Eastman Kodak Co. , 2010 WL 3516106, at *3 (N.D. Ill. 2010) (citing Jaramillo v. DineEquity, Inc. , 664 F.Supp.2d 908, 913 (N.D. Ill. 2009) (internal quotations omitted).

There is no debate that venue is proper in the instant forum. "A civil action may be brought in [] a judicial district in which any defendant resides...." 28 U.S.C. § 1391(b)(1). A corporate defendant shall be deemed to reside "in any judicial district in which [it] is subject to the court's personal jurisdiction with respect to the civil action in question[.]" 28 U.S.C. § 1391(c). Defendants conduct business in this district and throughout the state of Illinois. Venue and jurisdiction are also proper in the Northern District of Georgia, where defendants are headquartered.

The court must evaluate whether the proposed transferee district is more convenient for the both parties and witnesses. To determine whether one venue is more convenient than another, the court considers: (1) the plaintiff's choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the parties; and (5) the convenience of the witnesses. Spread Spectrum , 2010 WL 3516106, at *3. Moreover, "because § 1404(a) does not specify the weight to be accorded each factor, it is left to the descretion [sic] of the court." Heller Financial, Inc. v. Riverdale Auto Parts, Inc. , 713 F.Supp. 1125, 1127 (N.D. Ill. 1989).

The first factor, plaintiff's choice of forum, weighs against transfer. A plaintiff's choice of forum is typically accorded substantial weight, especially if it is also plaintiff's home forum. Amorose v. C.H. Robinson Worldwide, Inc. , 521 F.Supp.2d 731, 735 (N.D. Ill. 2007). This weight, however, is discounted in class actions. Blumenthal v. Management Assistance, Inc. , 480 F.Supp. 470, 472 (N.D. Ill. 1979) ("[P]laintiff's choice of a forum becomes substantially less important when he sues representatively on behalf of a class..."). If a nationwide class is certified, less deference is appropriate because any venue is likely to be inconvenient for some plaintiffs. Therefore, plaintiff's choice of forum will be given limited deference.

The second factor, the situs of the material events, is neutral. Defendants argue that the relevant situs is Atlanta because they are headquartered there and many of the decisions material to the action were made in Atlanta. Plaintiff argues that because the allegedly harmful conduct occurred in Illinois and nationwide, the situs of material events is not Georgia. Plaintiff further argues that the app was developed in Tennessee by Tallent Communication, Inc. (a/k/a "Mercury Intermedia"), and that Bango's servers are located in London, England, and Dallas, Texas. Because there are so many locations relevant to material events, plaintiff argues that Atlanta is not more central to the events than other locales, and therefore this factor should not weigh in favor of transfer.

The situs of material events depends both on the conduct of the defendants and on those who feel the effects of that conduct. Sojka v. DirectBuy, Inc., 2014 WL 1089072, at *2 (N.D. Ill. Mar. 18, 2014); Digan v. Euro-Am. Brands, LLC, 2010 WL 3385476, at *5 (N.D. Ill. Aug. 9, 2010). However, when a plaintiff purports to represent a class that was affected by defendant's conduct nationwide, the significance of the situs in plaintiff's chosen forum is diluted. Lafleur v. Dollar Tree Stores, Inc., 2012 WL 2280090, at *4 (N.D. Ill. June 18, 2012); see also Georgouses v. Natec Resources, Inc. , 963 F.Supp. 728, 730-1 (N.D. Ill. 1997). Because the situs of events occurred nationwide for plaintiffs and in Georgia for defendants, the situs of events is not concentrated in one venue. Thus, the situs of material events factor is neutral.

The third factor, ease of access to sources of proof, weighs slightly in favor of transfer. The court typically considers both testimonial and non-testimonial sources of proof. However, if neither party argues that non-testimonial sources of proof are difficult to transport, then access to such sources of proof is a neutral factor. Jewel Am., Inc. v. Combine Int'l, Inc., 2007 WL 4300589, at *3 (N.D. Ill. Nov. 30, 2007) ("In this age of faxing, scanning and overnight courier services... the location of documentary evidence is largely irrelevant."); Sojka, 2014 WL 1089072, at *3 (noting the ease of transporting relevant documents electronically or by other means). Plaintiff argues that defendants will be able to produce most of the documentary evidence electronically, thus easing the burden of any document production, and the court agrees with plaintiff that non-testimonial evidence is easily transportable and therefore a neutral factor.

Defendants argue that its employee-witnesses who will offer testimonial evidence and other sources of proof are located in Atlanta. Plaintiff counters that material sources of proof and individuals who will provide testimonial evidence are located in Tennessee, England, and Texas. Because defendants' employees whose conduct and decisions are material to the issues of the case are located in Georgia, ease of access to testimonial evidence would be better achieved by transferring the case to Georgia. Thus, even though non-testimonial evidence would not be difficult to transport, ease of access to testimonial evidence supports transfer.

The fourth factor, the convenience of the parties, weighs slightly in favor of plaintiff. Defendants argue that the Northern District of Georgia is more convenient because defendants will provide the majority of discovery, much of which is located in Georgia, and a nearly identical suit is already pending in the Northern District of Georgia. Plaintiff counters that the convenience to the parties does not weigh in favor of transfer because both defendants and plaintiff argue for the venue in which they reside. Plaintiff further argues that defendants have not shown they would be ...


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