United States District Court, E.D. Michigan, Southern Division
Judge, Elizabeth A. Stafford
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
E. LEVY, UNITED STATES DISTRICT JUDGE
the Court is defendants' motion to dismiss. (Dkt. 8.) For
the reasons set forth below, defendants' motion is
Elizabeth Moeller and Nicole Brisson are Michigan citizens
who subscribe to magazines published by defendants American
Media, Inc. and Odyssey Magazine Publishing Group, Inc. (Dkt.
1 at 10-12.)
as magazine publishers, maintain a database of their
subscribers and the magazines to which they subscribe.
(Id. at 2.) Plaintiffs refer to such information as
their personal-reading information. (Id.) Plaintiffs
claim that defendants unlawfully disclosed their
personal-reading information to third-parties in two ways.
First, plaintiffs allege that defendants shared the
information with “data-mining companies.”
(Id.) Data-mining companies add information they may
have about a particular subscriber-including age, gender,
ethnicity, income level, etc.-to defendants' records.
(Id.) The data miners' additions to
defendants' records increase the “street
value” of the personal-reading information when
defendants, in turn, sell subscribers' information to
third parties. (Id.) Second, plaintiffs allege that
defendants participated in “database cooperatives,
” through which defendants traded subscribers'
information with other publishers. (Id. at 9.)
defendants allegedly profited from the unlawful disclosure of
plaintiffs' personal-reading information, and plaintiffs
claim that these disclosures made their subscriptions less
valuable. (Id. at 12.) Plaintiffs did not consent to
the disclosure of their information, nor have defendants
provided plaintiffs notice of their practices. (Id.
claim the disclosure of their personal-reading information
violates the Michigan Personal Privacy Protection Act.
(Id. at 12, 14.) Plaintiffs also claim that any
revenue derived from selling subscribers' personal
information unjustly enriched defendants. (Id. at
Michigan Personal Privacy Protection Act (“PPPA”)
prohibits individuals “engaged in the business of
selling at retail, renting, or lending books or other written
materials” from “[disclosing] to any person,
other than the customer, a record or information concerning
the purchase . . . of materials by a customer that indicates
the identity of the customer.” Mich. Comp. Laws §
445.1712. Further, the original PPPA provided that a customer
whose information was disclosed could recover “actual
damages, including damages for emotional distress, or $5,
000, whichever is greater.” Mich. Pub. Acts 1988, No.
378, § 5, eff. Nov. 7, 1989 (amended 2016).
2016, the Michigan legislature amended the PPPA. Mich. Comp.
Laws § 445.1711 et seq.) (“Am.
PPPA”). The amendment excluded from liability
“disclosure[s] incident to the ordinary course of
business.” Am. PPPA § 3(d). The legislature
clarified that the new exception “only applies to a
record or information that is created or obtained after the
effective date of the amendatory act.” Id. The
legislature also amended section five of the PPPA, which
governs the remedies available under the act. Section five
originally stated that a customer “identified in a
record or other information disclosed in violation” of
the PPPA could sue to recover “[a]ctual damages,
including damages for emotional distress, or $5000, whichever
is greater.” Am. PPPA § 5. The amendment stated
that only a customer “who suffers actual damages as a
result of a violation of this act may bring a civil
action” and removed the statutory-damages provision.
Id. And the legislature included an enacting section
which states, “[t]his amendatory act is curative and
intended to clarify” provisions of the original
statute. Am. PPPA, enacting § 2.
filed this suit in April 2016, and the amended statute went
into effect on July 31, 2016. Id.
move to dismiss plaintiffs' PPPA claims on two grounds.
First, defendants argue that plaintiffs do not have standing
because they have not suffered an injury-in-fact. Second,
defendants argue that the recent amendment of the PPPA
precludes plaintiffs' claims. Defendants also move to
dismiss plaintiffs' unjust enrichment claims.
Standard of Review
bring their motion to dismiss under both Rule 12(b)(1) for
lack of subject-matter jurisdiction and Rule 12(b)(6) for
failure to state a claim.
subject-matter jurisdiction is challenged under Rule
12(b)(1), the plaintiff has the burden to prove jurisdiction.
Moir v. Greater Cleveland Reg'l Transit Auth.,
895 F.2d 266, 269 (6th Cir. 1990). Rule 12(b)(1) challenges
to a court's subject-matter jurisdiction may be either
facial or factual. Ohio Nat. Life Ins. Co. v. United
States,922 F.2d 320, 325 (6th Cir. 1990). A facial
attack “questions the sufficiency of the pleading,
” whereas a factual attack challenges the veracity of
the facts on which subject-matter jurisdiction is predicated.
Id. When reviewing a facial challenge, the Court
“takes the ...