Coulter-Owens v. Time Inc.

Coulter-Owens v. Time Inc.

Opinion

 [*118]  ALICE M. BATCHELDER, Circuit Judge. In this diversity action alleging that disclosure of certain private information was in violation of state law, the plaintiff class representative appeals the summary judgment for the [**2]  defendant and the defendant challenges the plaintiff's standing to sue. We find that the plaintiff does have standing and AFFIRM.

Time Inc. ("Time") publishes and sells magazines. One way that it sells magazines is through third-party subscription agents: a customer places an order and pays the subscription agent; the subscription agent forwards the order information to Time and pays Time some discounted or lower amount (i.e., the agent retains some profit); and Time fulfills the order by mailing the magazine directly to the customer for the duration of the subscription period. The agent never takes physical possession of the magazines. The contracts between Time and the subscription agents are titled "Resale Agreements." The price the subscription agent pays to Time and the profit it makes on the sale are unique to—often different for—each agreement. The subscription agent collects payment from the customer and remits taxes on the sale, if applicable; the agent does not provide Time with credit card or other payment information. And the subscription agent (not Time) addresses and resolves customer-billing or delivery complaints.

Obviously, Time uses the "order information" (customer's [**3]  name, address, and magazine choice) to fulfill the orders, but Time also sends that information to two other companies: Acxiom Corporation and Wiland Direct. Time does so to facilitate its "list rental business": Time sells ("rents") its subscriber lists to other enterprises (e.g., companies, political groups, charities) who want to target their own marketing to readers of specific magazines. As alleged here, Acxiom is a "vast marketing or data mining database" that enhances Time's subscriber lists with personal or demographic information obtained elsewhere, which enables Time to narrow its lists into focused, and therefore more valuable, subsets. And Wiland is a "marketing intelligence company" that shares its massive consumer database, which is valuable to Time's own marketing endeavors. Time does not seek or obtain customer consent before sharing this order information, but does provide notice of this practice  [*119]  in its magazines and allows the subscribers to "opt out."

Rose Coulter-Owens represents a class of customers who purchased certain of Time's magazines (Time, Fortune, and Real Simple) through online subscription agents.¹ Specifically, Coulter-Owens paid $2 for a one-year weekly [**4]  subscription of presumably 52 issues. (This price was not per issue, but $2 total for the entire year, of which the subscription agent did not pay any of the $2 to Time, so Time received no reimbursement for the magazine it was sending to Coulter-Owens for an entire year.) Time shared the order information with Acxiom and Wiland without Coulter-Owens's prior consent. Coulter-Owens sued in federal court, claiming an invasion of privacy in violation of Michigan's Preservation of Personal Privacy Act (PPPA),² which has three provisions pertinent here. First, Section 2:

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