How Jurisdiction Determines Outcome
Same Facts, Different Circuits = Different Outcomes
Imagine a beauty brand with embedded makeup tutorial videos and Meta Pixel tracking.
In the Second Circuit (Broad View):
- Customer is a "consumer"
- Class size: All website visitors, email subscribers, customers
- Damages: $100-$2,500 per person
- Total exposure: $50M-$500M+
- Settlement: $20M-$100M+
In the Sixth Circuit (Narrow View):
- Customer is a "consumer" only if they watched video
- Class size: Only video watchers (10-20% of visitors)
- Damages: $100-$2,500 per person
- Total exposure: $5M-$100M
- Settlement: $2M-$20M
Same defendant, same facts, same violation. But 10x difference in damages due to jurisdiction.
Why Forum Shopping Happens
Plaintiff's attorneys have strong incentives to file in defendant-unfavorable circuits.
Filing Strategy:
- Analyze venue options (where can I legally file?)
- Analyze circuit law (which circuit's interpretation favors plaintiffs?)
- File in broadest-view circuit if possible
For VPPA, this means: File in Second or Seventh Circuit if possible. Avoid Sixth or D.C. Circuits.
Why the Supreme Court Is Concerned
The circuit split creates perverse incentives:
- Plaintiffs always win on venue (file in broad-view circuits)
- Defendants always lose on law (unfavorable interpretation applies)
- Inconsistent outcomes nationwide
- Forum shopping encourages frivolous claims
This is why the Court took Salazar—to impose uniformity and eliminate forum shopping.
The infrastructure answer
The free PieEye compliance scan identifies whether your website has the VPPA vulnerabilities that plaintiffs' attorneys look for — tracking pixels firing on video pages without consent, data flowing to third parties before users have agreed, and policy-to-practice mismatches.
For the complete VPPA compliance framework, see our VPPA compliance guide. For the Supreme Court case that will resolve this split, see Salazar v. Paramount Global. For the consumer definition at the heart of the split, see VPPA consumer definition explained.
Run a free PieEye compliance scan — it takes minutes, requires no code changes to initiate, and tells you exactly what a plaintiffs' attorney's scanning tool would find if it looked at your website today.
What "Consumer" Actually Means in Your Circuit
The circuit split hinges on one word: consumer. And where you operate determines how courts in your jurisdiction define it.
In the Second Circuit (New York, Connecticut, Vermont), courts have ruled that anyone whose data is collected by a video player—even if they never watched the video—is a VPPA consumer. This means your Shopify store's embedded product demo video? Every visitor to that page is potentially in the class, regardless of whether they clicked play.
In the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee), courts require actual viewing. If your DTC brand embeds a tutorial video but a customer only looked at product images, they're not a consumer under VPPA.
The practical impact: If your eCommerce brand operates nationwide, you're effectively bound by the broadest interpretation—Second Circuit law—because plaintiffs will file there. This means you must assume every visitor to a page with an embedded video is a potential class member.
Your email subscriber list matters too. If you've sent emails with video links to customers who never opened them, different circuits treat those subscribers differently. Some circuits count the email send as the violation. Others require proof the link was clicked.
The safest approach: Don't assume your circuit's narrow definition protects you. Plan compliance as if the Second Circuit rule applies nationally.
How Settlement Math Works Across Circuits
Settlements in VPPA cases follow predictable patterns, but the starting number depends entirely on which circuit handles your case.
Second Circuit settlements typically range $10M–$100M for established brands with large email lists or high traffic. A mid-market Shopify brand with 500K email subscribers and Meta Pixel on 20 pages? Expect $15M–$40M in settlement exposure if plaintiffs can prove 18+ months of data collection without explicit consent.
Sixth Circuit settlements are usually 5–10x smaller because the class size shrinks. Same facts, same brand—but only 5% of your visitors actually watched videos? Settlement drops to $2M–$8M.
Seventh Circuit (Illinois, Indiana, Wisconsin) leans Second Circuit-broad but with slightly lower damage awards per person, creating a middle ground: $5M–$25M typical range.
The settlement isn't just damages multiplied by class size. Defense costs matter. Your brand will spend $500K–$2M on legal fees before settlement talks even begin. Discovery alone—producing all your consent logs, pixel firing data, and privacy policies—costs $200K–$500K.
For Shopify brands specifically: If your store has fewer than 100K monthly visitors and no embedded video content, settlement exposure drops dramatically (usually $500K–$3M). But if you've installed Google Analytics, Meta Pixel, and TikTok Pixel on product pages with video, you're in the $10M+ range regardless of circuit.
The math is brutal because plaintiffs' attorneys work on contingency. They only file cases where expected damages exceed $5M. If your brand is smaller, you might avoid litigation entirely—but only if you're truly compliant.
The Risk of Waiting for Supreme Court Resolution
Your brand might be thinking: "The Supreme Court will resolve Salazar soon. We'll just wait for clarity before investing in compliance."
This is a expensive gamble.
Here's why: Even after the Supreme Court rules, existing VPPA cases filed under current law won't disappear. A narrow Supreme Court ruling doesn't retroactively shrink a class certified in Second Circuit court. You're still defending that case under Second Circuit rules, even after the ruling.
More importantly, the lag between Supreme Court decision and actual compliance changes is 6–18 months. Plaintiffs' attorneys will continue filing aggressively until the decision is published and lower courts have applied it. If you're hit with a VPPA complaint next quarter, the Supreme Court decision won't help your defense timeline.
For your brand: Waiting creates compounding liability. Every week you operate without proper video consent mechanisms or pixel disclosure is another week of class members accumulating. If you had 1M page views last month, and your Meta Pixel fired on video pages without consent, that's potentially 1M class members for last month alone.
Compliance now reduces your exposure window. Compliance later means defending a larger class.
Building a Circuit-Agnostic Compliance Framework
Because you can't control which circuit handles a lawsuit, your privacy infrastructure must work across all interpretations.
Start here: Map every page on your Shopify store where video appears—product demos, tutorial carousels, embedded YouTube, Vimeo, or custom video players. For each page, document whether visitors see explicit consent language before any video code fires.
Then audit your tracking: Meta Pixel, Google Analytics, TikTok Pixel, and Klaviyo all fire automatically on page load in most default configurations. If they fire on pages with video content, you're exposing yourself to Second Circuit-style claims even if you operate in a narrow-view circuit.
Create a consent precedent: Implement a cookie banner that explicitly requires affirmative consent before video players load. Not cookie banners that bundle video tracking with "essential" cookies. Your consent logic should be: visitor arrives → sees banner → opts in → video code loads.
This framework protects you across all circuits because it satisfies the broadest standard (Second Circuit) while remaining compliant in narrow-view circuits.