Boelter v. Hearst Communications, Inc. (269 F. Supp. 3d 172, 2017)

United States District Court for the Southern District of New York 2017-09-07

Crimes and Criminal Procedure

Citations

Full opinion text

MEMORANDUM AND ORDER

ANALISA TORRES, United States District Judge

Plaintiff, Josephine James Edwards, brings this class action lawsuit against Defendant, Hearst Communications, Inc., alleging violations of the Michigan Video Rental Privacy Act, H.B. 5331, 84th Leg., Reg. Sess., P.A. No. 378, § 2 (Mich. 1988) (amended 2016) (“VRPA”), and unjust enrichment. Defendant moves to dismiss the consolidated class action complaint for lack of subject matter jurisdiction and each party moves for summary judgment. For the reasons stated below, Defendant’s motion to dismiss is DENIED, and each party’s motion for summary judgment is GRANTED in part and DENIED in part.

BACKGROUND

I. The Michigan Video Rental Privacy Act

In 1988, Michigan enacted the VRPA “to preserve personal privacy with respect to the purchase, rental, or borrowing of’ certain goods. Compl. ¶ 14. The law was enacted following the passage of the federal Video and Library Privacy Protection Act, 18 U.S.C. § 2710, and paralleled the enactment of similar consumer privacy laws in eleven other states. Compl. ¶¶ 13-17; see Boelter v. Hearst Commc'ns, Inc., 192 F.Supp.3d 427, 447 n.13 (S.D.N.Y. 2016). As relevant to this action, the Michigan statute prohibits a person, and an “employee or agent of the person,” “engaged in the business of selling at retail... books or other written materials” from “disc-los[ing] to any person, other than the customer,” “a record or information concerning the purchase ... of those materials by a customer that indicates the identity of the customer.” VRPA § 2, The VRPA defines “customer” as “a person who purchases ... a book or other written-material,” defines “employee” as “a person who works for an employer in exchange for wages or other remuneration,” and defines “employer” as “a person who has 1 or more employees.” Id. § 1. .. '

The law’s prohibition is subject' to five exceptions: .disclosure is allowed “[w]ith the written permission of the. customer”; “[p]ursuant to a court order”; to “collect payment” from the customer so long as the customer “has received written notice that the payment is due and has failed , to pay ,,. within a reasonable time after notice”; if “the disclosure is for the exclusive purpose of marketing goods and services directly to the consumer,” so long as the consumer receives “written notice that the customer may remove his or her name at any time by written notice to the person disclosing the information”; and pursuant to a search warrant or grand jury subpoena. Id. § 3.

Violation of the law constitutes a misdemeanor, id. § 4, and .customers who are “identified in ,,.' information that is disclosed in violation of [the] act” may bring a civil action to recover “actual damages, including damages for emotional distress, or $5,000.00, whichever is greater,” as well as costs and reasonable attorneys’ .fees, id. §5.

In May 2016, during the pendency of this action, the Michigan' legislature amended the VRPA. See S.B, 490, 98th Leg., Reg. Sess., P.A. No. 92 (Mich. 2016) (to be codified at M.C.L. § 445,1711 et seq.) (“Am, VRPA”). The amendment added an exemption for the disclosure of identifying information if the disclosure -is “incident to the [disdoser’s] ordinary course of business.” Am. VRPA § 3(d). This new exception, however, “only applies to a record or information that is created or obtained after” the amendment’s effective date. Id. The amended VRPA no longer allows an individual to sue for statutory damages. See Am. VRPA § 5(2). In deciding Defendant’s prior motion to dismiss, the Court concluded that the amendment does not apply retroactively and the pre-amendment version of the VRPA applies to this case. Boelter, 192 F.Supp.3d at 439-41; see also, e.g., Coulter-Owens v. Time Inc., No. 16-1321, 695 Fed.Appx. 117, 120-21, 2017 WL 2731309, at *3 (6th Cir. June 26, 2017); Perlin v. Time Inc., 237 F.Supp.3d 623, 628-33 (E.D. Mich. 2017); Moeller v. Am. Media, Inc., 235 F.Supp.3d 868, 873-76 (E.D. Mich. 2017); Boelter v. Advance Magazine Publishers Inc.. (Condé Nast), 210 F.Supp.3d 579, 593-96 (S.D.N.Y. 2016),

II. Plaintiff

- Plaintiff—who goes by Josephine James or Josephine James Edwards—is a Michigan resident. Def. 56,1 ¶¶ 14-20. Plaintiff has subscribed to a number of magazines published by Defendant, including Good Housekeeping, O, The Oprah Magazine, and Bedbook. Id, ¶ 47. Plaintiff alleges that Defendant disclosed her personal information—including her name and address and the titles of magazines to which she subscribed—to third parties for Defendant’s own gain, and 'that Plaintiff was not notified of and did not consent to these disclosures. See Compl. ¶¶ 7, 8, 58-60.

Among other subscriptions, Plaintiff maintained a subscription to Good Housekeeping from April 2009 to March 2010. PI. 56.1 ¶ 48. Plaintiff testified that she “would not have subscribed” to Good Housekeeping if the protections of the VRPA did not exist: “The protections are more important to. me than the value of the magazine. ,,. [M]y privacy is more important than a magazine,” Findikyan Decl. 1 Ex. H (“PI. Dep.”), at 193:22-25. Plaintiff explained that “what I read is really nobody’s business,” id. 66:18-19, and that she would not have purchased the subscription even it were free had she known that the publisher would share her personal information, id. 192:6-20.

III. Hearst’s Privacy Practices

In each issue of Good Housekeeping sent to Plaintiff from April 2009 to March 2010, the following notice was included in the issue: “Prom time to time, we make our subscriber list available to companies who sell goods and services by mail , that we believe would interest our readers.” Def. 66.1 ¶ 49; PI. 66.1 ¶204. The notice provided instructions on how to opt out of such mailings. Id. There is no evidence that Plaintiff ever. requested to opt out. Def. 56.1 ¶ 78.

In addition, since at least April 2012, Hearst has maintained a privacy policy on its website. Id. ¶ 66; see Findikyan Deck ¶ 31 & Ex. DD (“Def. Privacy Policy”), EOF No. 136. This policy is available by following a “Privacy Policy” link at the bottom of e-mails from Good Housekeeping. Def. 56.1 ¶63. Plaintiff received emails from Good Housekeeping from January 2012 to at least July 2016, id. ¶ 62, but testified that she never saw Hearst’s privacy policy, Pl. Dep. 172:20-173:12.

The privacy policy indicates that “if you subscribe offline to one of the magazines published by Hearst..., from time to time we make your postal addresses available to companies for marketing purposes.” Def. Privacy Policy § 1(d). The policy states that Hearst “may combine and use any and all information we collect on you either online or otherwise, including from third parties, for marketing purposes.” Id. § 3(b). The policy also notes that “Hearst may (and you [the consumer] authorize us to) share or disclose Personally Identifiable Information” to “third party service providers to provide products, services or functions on our behalf (such as sending emails or processing credit cards or fulfilling subscriptions),” and third-party entities that “want[] to promote goods and services we think would be of interest to you.” Id'. § 4(a)(i), (vi). The privacy policy also states that a consumer’s contact information may be disclosed “to third parties to allow them to market their products or services to you or for other marketing purposes,” and that a consumer can opt-out by contacting Hearst or adjusting their online account preferences. Id. § 5(d).

IV. Defendant’s Use of Plaintiffs Information

Defendant’s Consumer Marketing department maintains a database of current and former subscribers, of its magazines. Def. 56.1 ¶ 5. The database was established on or about June 1, 2008, arid includes information relating to all 'magazine subscribers from June 2008 to the present, and information about some, but not all, subscribers who became inactive prior to June 2008. Id. ¶6. The records include names, mailing addresses, subscription information, promotional history, donor information for gift subscriptions, and demographic and other information provided to Defendant by third parties. Id. ¶¶ 7-9.

Defendant admits that it transmitted or authorized transmissions of Plaintiffs identifying information to six.third-party entities. Each is described .below.

A. Acxiom Corporation

Since mid-2008, Defendant’s marketing database has been hosted and maintained by Acxiom Corporation (“Acxiom”). Def. 56.11 ¶¶ 06-07. Defendant owns or licenses all the data residing in the database, id. ¶ 111, and pays Acxiom monthly service fees to host, maintain, and operate the database and perform related services, id. 1Í115. At Defendant’s direction, Acxiom has transmitted data from the database to some of Defendant’s third-party service providers and partners. Id. ¶¶ 116-17. Acx-iom has no authority to transmit Defendant’s data without Defendant’s permission and may not use the data for its own purposes. Id. ¶¶ 119, 121-22. Pursuant to the contract between Defendant and Acx-iom, Acxiom would perform all services as an “independent contractor, and nothing contained herein shall be deemed to create any employment, associate, partnership, joint venture, or relationship of principal and agent or master and servant” between the two parties. Pl. 56.1 ¶ 10.

In May 2008, Acxiom received Plaintiffs identifying information from Defendant. Pl. 56.1 ¶ 18; see Márchese Decl. 1 Ex. 11. In the week prior to December 6, 2012, Acxiom received updated information about Plaintiff from Defendant. Pl. 56.1 ¶ 19; see Márchese Decl. 1 Ex. 5 (“Vanth-ournout Dep.”), at 173:5-10. Acxiom’s records include Plaintiffs name, address, and subscription history. Pl. 56.1 ¶ 20; Vanth-ournout Dep. 249:2-250:3.

B. Experian Marketing Solutions, Inc.

In February 2001, Defendant entered into a contract with Experian Marketing Solutions, Inc. (“Experian”). Pl. 56.1 ¶¶ 79. Defendant would send approximately 14 to 20 million records of current and former subscribers a year to Experian, and Expe-rian would “overlay” additional data about these subscribers, such as political affiliation or demographic information. Id. ¶¶ 81, 86. The number of names Hearst submitted rose in 2012. Id. ¶ 87. At least once a year, Defendant directs Acxiom to provide data to Experian. Pl. 56.1 ¶¶ 88-92. Defendant’s contract with Experian provides that they are “independent contractors” and states that “[njothing in [the contract] shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties.” Pl. 56.1 ¶80.

In 2011, 2012, 2013, and 2014, Defendant sent Experian data regarding Plaintiff. Id. ¶¶ 91-94. Defendant’s database contains information acquired from Experian about Plaintiff. Id. 1Í 95. In March 2015, Defendant ceased sending subscription magazine titles as part of the data transmissions to Experian, and Defendant’s June 2015 data transmission to Experian did not include the titles of the magazines Plaintiff subscribed to. Id. ¶¶ 96-97.

C. “Company 1”

In May 2007, Defendant entered into a contract to join the [Redacted] (“Company 1”) data cooperative. Def. 56.11 ¶¶ 147—48; PI. 56.11 ¶¶ 99-100. A data cooperative allows a company to receive personal information of potential new customers in exchange for submitting information about their current or past customers. PI. 56.1 ¶ 101; Findikyan Decl. 1 Ex. I (“Murphy Dep.”), at 346:5-12. Pursuant to its contract, Defendant was required to contribute its “customer file at the beginning of th[e] relationship and send[ ] complete previous-month customer history transaction information” on a monthly basis. PL 56.1 ¶ 102.

Once a month, Defendant directed Acx-iom to transmit to Company 1 certain data, including name, address, and magazine title. Id. ¶¶ 107-08. It is not clear what years these transfers occurred. For instance, Defendant states that “[b]y 2011, Hearst was no longer participating in the [Company 1 data c]o-op” and that “Hearst renewed its participation ... in 2012 on a limited basis.” Findikyan Decl. 2 Ex. WW ¶ 8. And Defendant “does not dispute that from November 2014 to March 2015 transmissions of certain subscriber data to [Company 1] included name, address and a three character code representing a magazine title,” PI. 56.1 ¶ 107. Plaintiff contends, however, that Defendant directed Acxiom to transmit Plaintiffs identifying information once a month from January 2011 through March 2015, id. ¶ 108, but does not provide any supporting evidence for this contention.

The evidence regarding Defendant’s transmission of personal information about Plaintiff is similarly murky. A representative from Company 1 stated .that it did not find any raw data files from Defendant containing information about Plaintiff. Márchese Decl. 1 Ex. 28. Company 1 did produce a “partial record for the James household,” id., which is- dated June: 7, 2014, and does include information identifying Plaintiff at her Michigan address and mentions the magazine Good Housekeeping, Márchese Decl. 1 Ex. 27. ■

D. “Company 2”

On February 28, 2007, Defendant entered. into a contract with [Redacted] (“Company 2”), a data cooperative, under which Defendant would “contribute its subscriber file and related transaction data” in exchange for receiving leads on potential new customers. Id. ¶¶ 117-18, 120, 122. Only entities that provide customer data can receive new data from Company 2. Id. ¶ 121. Pursuant to the contract, Defendant was required to provide “(a) Active Subscriber Name and Address; (b) Active Subscriber historical transaction data including most recent subscription date and dollar amount, source of latest order, and such' other data as may be agreed upon; [and] (c) Selected Expired Subscriber name, address, and transaction information similar to that provided for active subscribers.” Id. ¶ 122.

A representative from Company 2 testified that Defendant provided it with Plaintiffs name, address, and the fact that Plaintiff subscribed to Women’s Day magazine. Márchese Decl. 1 Ex. 31 (“Company 2 Dep.”), at 122:22-123:14. Company 2 also produced a spreadsheet with some of the information in .its possession concerning Plaintiff. PI. Mem, 16; Márchese Decl. 1 Ex. 33, The representative, reviewing that record, testified that the “Update Date” for Company 2’s records regarding Plaintiff was April- 7, 2011. Company 2 Dep. 124:7-17. However, Defendant did not own Women’s Day-magazine on April 7, 2011. Def. Suppl. 56.1 ¶¶ 21 -22. Plaintiff, in support of her claim, points to three addenda to the contract between Company 2 and Defendant, dated March 29, September 12, and October 24, 2013, which each added transmissions of personal information of expired subscribers of magazines to which Plaintiff subscribed. PI. Reply 8 (citing Findikyan Decl. 2 Exs. CCO, DDD, EEE).

E. Dunn Data Co., Inc.

Pursuant to a December 2008 contract with Dunn Data Co., Inc. (“Dunn Data”), Defendant would provide Dunn Data with certain data about active and expired subscribers in exchange for money and reduced rates when using Dunn Data’s services, PI. 56.1 ¶ 53-54. Dunn Data is a “data, aggregator,” which means it “acquired data from companies like [Defendant] and companies like Equifax,... Time Inc., Condé Nast, Meredith and so on.” Findikyan Decl. 1 Ex. K (“Dunn. Dep.”), at 11:19-12:3. Dunn Data collects this data, matches it “to government records and other compiled information about consumers,” and compiles it into “a large database.” Id. From 2008 to 2013, Defendant provided certain customer data to Dunn Data on a quarterly basis, receiving $156,000 in total and access to Dunn Data’s database products at a discount. PL. 56.1 ¶¶ 72-74. Defendant cancelled its contract with Dunn Data in 2013. Id. ¶ 78.

Plaintiffs records, indicating her status as an expired Good Housekeeping magazine subscriber, were “eligible” to be included in three scheduled transmissions to Dunn Data by Defendant from June 2011 to March 20l2. Pl. 56.11 ¶ 75; Murphy Dep. 366:19-367:18. Stephen Dunn, Dunn Data’s owner, testified at a deposition that, at some unspecified time, Dunn Data received Plaintiffs name, address, and the titles of Defendant’s magazines to which she subscribed. Pl. 56.1 ¶ 76; Dunn Dep. 130:7-17.

F. “Company 3”

Defendant entered into a contract with [Redacted] (“Company 3”) in November 2009. Pl. 56.1 ¶35. Pursuant to the contract, Defendant agreed to provide “names and addresses of Hearst active subscribers, expires, and new moves” relating to thirteen different publications. Id. ¶ 36; Márchese Decl. 1 Ex. 16, at 1, 5. Defendant transmitted data to Company 3 monthly and committed to delivering millions of records each year. Pl. 56.1 ¶ 37; see also id. ¶¶ 42-43. In exchange, Defendant received an annual license fee. Id. ¶ 38. The contract provided that “[t]he parties are independent contractors under this Agreement and no other relationship is intended, including, but not limited to, customer, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship.” Id. ¶ 41.

Under the contract, Plaintiffs identifying information was eligible to be transmitted by Acxiom to Company 3 each month from July 2011 to March 2015. Id. ¶ 47; Murphy Dep. 304:22-305:5. Defendant does not dispute that on December 1, 2014, January 5, 2015, February 2, .2015, and March 4, 2015, Acxiom transmitted Plaintiffs name, address,, and status as an expired subscriber of Good Housekeeping, Oprah, Redbook, and Women’s Day to Company 3. Pl. 56.1 ¶ 48. Defendant also transmitted data indicating whether Plaintiffs subscriptions were “Direct to Publisher” (“DTP”)—that is, purchased directly from Defendant. Id. ¶¶ 50-52;' Marchese Decl. 1 Ex. 18 (“Company 3 Decl.”) ¶¶ 7-8; Pl. 56.1 50-52.(

V, Procedural History

On May 21, 2015, former plaintiff Suzanne 'Boelter filed a class action against Defendant alleging violations- of the VRPA and unjust enrichment. ECF No. 1. On November 24, 2015, Plaintiff filed a class action asserting similar claims. Edwards v. Hearst Commc’ns, Inc., No. 15 Civ. 9279, ECF No. 1. The two cases were consolidated for all purposes on February 8, 2016, ECF No. 66, and on February 26, 2016, Boelter and Plaintiff filed an amended complaint, ECF No. 67. Defendant filed a motion tb' dismiss and, after extensive briefing including supplemental briefing on the Supreme Court’s decision in Spokeo, Inc. v. Robins, the Court issued a memorandum and order (the “2016 Opinion”) denying Defendant’s motion. ECF No. 81. On October 17, 2016, the Court so-ordered Boelter’s stipulation of dismissal. ECF No. 125.

DISCUSSION

I. Legal Standards

A. Rule 12(b)(1) Motion.

Following Discovery

In resolving a motion to dismiss for lack of subject matter jurisdiction, “the district court must take all uncontroverted facts in the complaint.,. as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, “[w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.” APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)); see also Carter v. Health-Port Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).

If a defendant’s evidence “ ‘re-vealfs] the existence of factual problems,’ ” a plaintiff “will need to come forward with evidence of [her] own to controvert that presented by the defendant.” Carter, 822 F.3d at 57 (quoting Exch. Nat’l Bank v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). If, however, a defendant’s .evidence is “immaterial because it does not contradict plausible. allegations that are themselves sufficient to show standing,” a plaintiff may “rely on the allegations in the Pleading.” Id. If a court is faced with material and controverted extrinsic evidence, the court may make findings of fact to determine standing.' Id.; see also All. For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 (2d Cir. 2006).

B. Motion for Summary Judgment

On a motion for summary judgment, “[t]he court, shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The .moving party bears the initial burden of pointing to evidence in the record, “including depositions, documents[,] ... [and] affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A), “which it believes demonstrate^] the absence of a genuine issue of material, fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may support-an assertion that there is no genuine dispute by “showing ... that [the] adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On summary judgment, the Court construes the facts, resolves all ambiguities, and draws all permissible factual inferences in favor of the non-moving party. See Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).

II. Defendant’s Motion to Dismiss

Defendant- argues that Plaintiff lacks standing to bring this action because Defendant’s alleged violation of the VRPA does not constitute a concrete injury. Defendant is incorrect.

' In denying Defendant’s first motion to dismiss, the Court found that “[a]s alleged, Plaintiff[ ] suffered a particularized, concrete injury-in-fact—the violation of [her] rights under -the VRPA, along with economic harm—that was caused by Defendant and that can be remedied by court action” and concluded that at that stage, “the pleadings are sufficient to establish Plaintiffs’ standing to sue.” Boelter, 192 F.Supp.3d at 438. Defendant now challenges the accuracy of the jurisdictional facts alleged.

“It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged.” Robinson V. Gov’t of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 68, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (Scalia, J., concurring in part and concurring in the judgment)). A defendant is “permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the” pleadings, in which the defendant can controvert the allegations in the complaint and the plaintiff must come forward with evidence of her own. Carter, 822 F.3d at 57.

To establish standing, a plaintiff must allege “(1) an injury that is (2) ‘fairly traceable to the defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed by the requested relief.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 590, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). The injury. must be an- “injury-in-fact,” meaning it is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). An injury is particularized if it “affeet[s] the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130). A concrete injury must be “ ‘de facto; that is, it must actually exist.” Id. at 1549.

Although “tangible injuries are perhaps easier to recognize” as concrete, an “intangible” harm may also be concrete where, for example, an otherwise de facto injury that was inadequate at law has been “identif[ied] and elevat[ed]” by a legislature. Id. For that reason, “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III.” Id. However, “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id.

Defendant contends that Plaintiffs alleged injury falls into the first category articulated in Spokeo—that is, a mere technical violation of the VRPA “divorced from any concrete harm”—and not the second category, which encompasses a violation of a statute that, in itself, constitutes an injury in fact. Spokeo, 136 S.Ct. at 1549; see generally Def. Opp. 5-13. The Court disagrees.

First, every court to consider the issue of standing under the VRPA has concluded that such a violation constitutes a concrete injury in and of itself. Earlier this year, the Sixth Circuit addressed the issue of standing under the VRPA, and concluded that “the disclosure of that information is a cognizable injury in fact for purposes of Article III standing.” Coulter-Owens, 695 Fed.Appx. at 121, 2017 WL 2731309, at *3. That Court of Appeals rejected the argument posited by Defendant here: “[T]he violation at issue here is not a ‘bare procedural violation’; it is a violation of the [VRPA’s] most basic substantive protection, the privacy in one’s reading materials. Spokeo does not apply here.” Id. at 121, at *4. Similarly, in a case parallel to this one against magazine publisher Conde Nast, the Honorable Naomi Reice Buchwald came to the same conclusion: “Boelter’s allegations squarely implicate the right to privacy in her [personal information] protected by the [VRPA]. ... This is distinct from the procedural ‘notice’ violation discussed in Spokeo, which resulted in no additional harm.” Condé Nast, 210 F.Supp.3d at 589. Federal district courts in Michigan have consistently • come to the same conclusion. See Perlin, 237 F.Supp.3d at 640-41 (holding that VRPA violation is “not a ‘bare procedural violation,’ but rather a violation of the VRPA’s substantive core” and “the right guaranteed by the VRPA is similah in kind to other privacy rights that were gradually recognized by American courts over the course of the last century”); Moeller, 235 F.Supp.3d at 873 (“Subscribers’ right to privacy in their personal-reading information is grounded in an interest ‘traditionally regarded as providing a basis for a lawsuit in English or American courts.’ ... And because the alleged violation of the Michigan [VRPA] here implicates plaintiffs’ ‘concrete interest’ in the nondisclosure of their personal information without their permission, they have adequately pled a concrete injury-in-faet”).

Plaintiffs alleged injury is not a “bare procedural violation,” but a substantive violation that strikes at the long-recognized right to privacy. Both before and after Spokeo, courts have held that a plaintiff aggrieved under the federal Video and Library Privacy Protection Act has a concrete and actionable injury. See, e.g., Condé Nast, 210 F.Supp.3d at 589 (collecting cases). As Spokeo implies, a legislature may “elevate[ ] an otherwise non-actionable invasion of privacy into a concrete, legally cognizable injury.” Id. (quoting Yershov v. Gannet Satellite Info. Network, Inc., 204 F.Supp.3d 353, 361 (D. Mass. 2016)). Although the. parties debate the scope of the common law right to privacy and related Michigan torts, there. is no question that an individual has an interest in the disclosure of her personal information sufficient to establish a de facto injury that can be identified and. elevated by a legislature. Yershov, 204 F.Supp.3d at 362 (“[B]oth the common law. and the literal understandings.of privacy encompass, the individual’s control of information concerning his or her person.” (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989))); see also, e.g., In re Nickelodeon Consumer Privacy Litig,, 827 F.3d 262, 273-74.(3d Cir. 2016) (holding that a violation of the Video and Library Privacy Protection Act results in a concrete harm if “it involves a clear defacto injury, i.e., the unlawful disclosure of legally protected information”). The harms the Michigan legislature intended to prevent—“one’s choice in videos, records, and books is nobody’s business but one’s own, and [we] suggest the enactment of a statute to explicitly protect a consumer’s privacy in buying and borrowing such items,” House Legislative Analysis Section, Privacy: Sales, Rentals of Videos, Etc., H.B. 5331, (Jari. 20, 1989), Boelter Compl. Ex. A (“Mich. Leg. Analysis”)—echo the fundamental right to priva-, cy. A violation thereof, represents a de facto injury elevated by the Michigan legislature into a legally, cognizable claim. See, e.g., Condé Nasti, 210 F.Supp.3d at 590 (discussing the common , law tort of invasion of privacy); Perlin, 237 F.Supp.3d at 639-40.

Finally, although the substantive violation of the VRPA is sufficient to confer standing, Plaintiff has testified to additional economic injuries, explaining that she would not have purchased a- subscription to any Hearst magazine had she known that her personal information would be disclosed. PI. Dep. 192:9-193:25. The Second Circuit recently declined to find that plaintiffs had standing where they “fail[ed] to allege that they would not have purchased the life insurance and annuity riders .,. had they known of [the defendant’s] alleged shadow insurance practices,” suggesting that a contention like Plaintiff’s would be sufficient to establish standing. Ross v. AXA Equitable Life Ins. Co., 680 Fed.Appx. 41, 45 (2d Cir. 2017). Although Defendant seeks to discredit Plaintiffs testimony as conclusory and self-serving, Defendant has also not provided any evidence to the contrary. Defendant merely suggests that Plaintiff should have knoum about Defendant’s sharing of personal identifying information because prior lawsuits on this issue were “well known and well publicized,” Def. 6pp. 12, despite Plaintiffs denial of awareness, Pl. Dep. 83:9-11 (“Q, Did you learn about other lawsuits that had been filed? A. No, no.”). As Defendant has not successfully challenged the accuracy of the jurisdictional facts alleged, the Court credits both the allegations in the complaint and Plaintiffs testimony. See Robinson, 269 F.3d at 140. These economic injuries also suffice to establish a particularized and concrete injury to confer standing. See Ross, 680 Fed.Appx. at 44-45.

Accordingly, Defendant’s motion to dismiss is DENIED.

III. Defendant’s Motion for Summary Judgment

Defendant moves ■ for summary judgment on five legal theories that would narrow or eliminate its potential liability: (i) that some of Plaintiffs VRPA claims are time-barred by the three-year statute of limitations, which should not be tolled; (ii) that its transmissions of Plaintiff’s identifying information are not actionable- under the VRPA; (iii) that the VRPA is unconstitutionally vague, or (iv) in violation of the First Amendment; and (v) that Plaintiffs unjust enrichment claim fails as a matter of law. The Court addresses each issue below.

A. Tolling

First, Defendant argues that some of Plaintiffs VRPA claims are time-barred by Michigan’s three-year statute of limitations. See M.C.L. § 600.5805(10). Plaintiff argues that her claims should be equitably tolled based on two ' cases in which Plaintiff was a putative class member: Grenke v. Hearst Communications, Inc., No. 12 Civ. 14221, which was filed on September 24, 2012, in the Eastern District of Michigan and voluntarily dismissed on February 23, 2015; and Boelter, with which Plaintiffs case was consolidated before the Boelter plaintiff was dismissed. “[A] federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether, and to what extent, the statute of limitations should be tolled by the filing of a putative class action in another jurisdiction.” Casey v. Merck & Co., 653 F.3d 95, 100 (2d Cir. 2011). In a memorandum order in this case dated November 9, 2016, the Honorable James L. Cott, U.S. Magistrate Judge, wrote that “the tolling issue turns on unsettled questions of Michigan state law, which the Court declines to resolve at this juncture,” but that “it appears that plaintiffs claims were at least potentially tolled until the motion for class certification was withdrawn in the, Michigan action.” Edwards, ECF No. 77 at 1-2.

Turning then to Michigan law, the parties do not dispute that Michigan has “essentially eliminated” equitable tolling, and instead requires that tolling be dictated by statute. Colen v. Corizon Med. Servs., No. 14 Civ. 12948, 2017 WL 389960, at *8 (E.D. Mich. Jan. 25, 2017); see Chandler v. Wackenhut Corp., 465 Fed.Appx. 425, 431 (6th Cir. 2012) (“The [Michigan Supreme Court] held that equitable tolling is only available if ‘no controlling statute negated the application of equity (quoting Trentadue v. Buckler Lawn Sprinkler, 479 Mich. 378, 406, 738 N.W.2d 664 (2007))). The parties identify; Michigan Court Rule 3.501(F) as the relevant statute, which states in full:

(F) Statute of Limitations.

(1) The statute of limitations, is tolled as to all persons within the class described in the complaint on the commencement of an action asserting a class action.

(2) The statute of limitations resumes running against dass members other than representative parties and intervenors:

(a) on the filing of a notice of the plaintiffs failure to move for class certification under subrule (B)(2);

(b) 28 days after notice has been made under subrule (C)(1) of the entry, 'amendment, or revocation of an order of certification eliminating the person from the class;

(c) on entry of an order denying certification of the action as: a class action;

(d) on submission of an election to be excluded;

(e) on final disposition of the action.

(3) If the circumstance that brought about the resumption of thé running of the statute is superseded by a further order of the trial court, by reversal on appeal, -or otherwise, the statute of limitations shall be deemed to have been tolled continuously from the commencement of the action.

M.C.R. 3.501(F). As the Michigan Supreme Court has explained, this provision was “modeled after” the United States Supreme Court’s decision in American Pipe and Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Cowles v. Bank West, 476 Mich. 1, 719 N.W.2d 94, 103(2006).

Defendant first argues that M.C.R. 3.501(F) “does not apply to the facts of this case '[because] it only governs cases pending in Michigan state courts.” Def. Opp. 45 (citing M.C.R. 1.103). This argument is unpersuasive: although M.C.R. 1.103 states that the Michigan Court Rules govern courts “established by the constitution and laws of the State of Michigan,” M.C.R. 1.103, federal courts look to state law to determine tolling, Casey, 653 F.3d at 100. Federal district courts both within and outside Michigan have applied M.C.R. 3.501(F) to analyze tolling of Michigan claims. See, e.g., Compressor Eng’g Corp. v. Chicken Shack, Inc., No. 10 Civ. 10059, 2013 WL 4413752, at *5 (E.D. Mich. Aug. 15, 2013); Emerson Elec. Co. v. Le Carbone Lorraine, S.A., 500 F.Supp.2d 437, 451 (D.N.J. 2007). Accordingly, the Court will look to M.C.R. 3.501(F) to determine whether Plaintiffs claims were tolled by Grenke or Boelter.

Defendant contends that Grenke should not toll Plaintiffs claims because Grenke was voluntarily dismissed with prejudice after it was discovered that the plaintiff lacked standing. Def. Opp. 42 n.32 (citing Grenke, ECF No. 95). Defendant directs the Court-to the tolling exception under American Pipe and its progeny where the statute of limitations is not tolled when a case has been voluntarily dismissed. Nee, e.g., In re IndyMac Mortg.-Backed Sec. Litig., 718 F.Supp.2d 495, 504 (S.D.N.Y. 2010) (“The general rule ... is that a voluntarily dismissed complaint does not toll the statute of limitations. This is because the law treats ■ a voluntarily dismissed complaint as if it.-never had been filed.” (footnotes omitted) (citing Elgendy v. City of New York, No. 00 Civ. 5196, 2000 WL 1119080, at *5 (S.D.N.Y; Aug. 7, 2000))).

However, the American Pipe exception does not apply here. As an initial matter, such an exception would be contrary to the purpose of M.C.R. 3.501(F): “The manifest purpose of this provision is to avoid 'the situation in which each class member must initiate his or her own individual lawsuit to preserve a cause of action. Thus, class members must be allowed to rely upon the ‘assertion’ of a class action without having to independently determine that the person asserting it has a right to do so.” Cowles, 719 N.W.2d at 110 n.16 (emphasis added). It follows, therefore, that Plaintiff could rely on Grenke even though it turned out that the Grenke plaintiff did not have standing to represent the class. Moreover, this exception is generally limited to cases where the initial class action was voluntarily' dismissed without prejudice, whereas Grenke was voluntarily dismissed with prejudice. See, e.g., Franklin v. Consol. Edison Co. of N.Y., No. 98 Civ. 2286, 1999 WL 796170, at *4 (S.D.N.Y. Sept. 30, 1999) (“When an action is dismissed without prejudice, it is treated as if it had never been filed.”); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2367 (3d ed. 2017) (“[A] voluntary dismissal without prejudice under Rule 41(a) leaves the situation as if the action never had been filed.”)'. Finally, M.C.R. 3.501(F) does not incorporate the American Pipe exception, nor has Defendant provided any indication that Michigan state courts apply this exception, and the Court is bound to apply Michigan state law. See Casey, 653 F.3d at 100; see also Compressor Eng’g Corp., 2013 WL 4413752, at *5 (tolling, under both federal and Michigan law, a plaintiffs claim based on a.prior class action that was voluntarily dismissed with prejudice). Accordingly, Plaintiffs claims may be tolled by Grenke.

Accepting that Grenke may toll Plaintiffs claims, the Court must calculate the precise number of days tolled. Grenke. was filed on September 24, 2012, Grenke, EOF No. 1, and a motion to certify a class was filed the same day, id. at EOF No, 2. The Grenke plaintiff withdrew without prejudice his motion for class certification on August 20, 2013. Id. at EOF No. 39. This is the date that Judge Cott used to calculate tolling. Edwards, ECF No. 77 at 9. Grenke was voluntarily dismissed with prejudice on February 23, 2015. Grenke, ECF No. 95. The Court concludes that, under M.C.R. 3.501(F), Plaintiff is .entitled to tolling for the entire length of Grenke litigation, not only until August 20, 2013. First, M.C.R. 3.501(F)(2) does not contemplate withdrawal without prejudice as one of the five conditions that recommences the running of the statute of limitations. The withdrawal without prejudice of the class certification motion in 2013 was not, therefore, a failure to move for class certification or a denial of certification that would otherwise terminate tolling under M.C.R. 3.501(F)(2)(a) or (c). Moreover, as Plaintiff explains:

Prior to the United States Supreme Court’s decision in Campbell-[Ewald] Emald Co. v. Gomez [— U.S. -], 136 S.Ct. 663 [193 L.Ed.2d 571] (2016), plaintiffs would often file ‘placeholder’ motions for class certification with their complaints, to protect against any attempt by defendants to ‘pick-off the named plaintiffs individual claims by making a Fed. R. Civ. P. 68 offer of judgment above what the individual plaintiff could recover in the lawsuit. After discovery, [plaintiffs would then file bona .fide motions for class certification. That is exactly what happened in Grenke.

Pl. Opp. 47 (citation omitted). As is clear from the Grenke docket, the court set deadlines for class certification motions that extended well into 2015. See Grenke, ECF Nos. 47, 48, 52.

Plaintiffs claims, therefore, were tolled by Grenke from September 24, 2012, to February 23,2015—for 883 days.

Boelter was- filed on May 21, 2015. The Court rejects Defendant’s argument that Boelter should be excluded under M.C.R. 3.501(F) for the reasons already explained and agrees, therefore, with Judge Cott that Plaintiffs claims were tolled from May 21, 2015, until November 24, 2015, when Plaintiff filed her action in this case, Accordingly, Plaintiffs claims were tolled for 883 days before the filing of Boelter, or December 20, 2012.. Taking into account the three-year statute of limitations, any disclosure by Defendant that occurred after December 20, 2009 are actionable. Defendant’s motion for summary judgment based on the three-year statute of limitations is, therefore, DENIED.

B. Scope of the VRPA

Defendant raises three statutory interpretation arguments as to why its transmissions of Plaintiffs identifying information are not actionable under the VRPA: first, Defendant did not transmit records “concerning the purchase” of Plaintiffs magazine subscriptions; second, Defendant’s confidential transmissions were not “disclosures”; and third, Defendant’s transmissions were to its employees or agents ■ and' therefore exempt. The- Court addresses these arguments in turn and applies the Court’s conclusions to the disclosures discussed in Plaintiffs motion for summary judgment in section IV, infra.

i “Concerning the -Purchase” •

The VRPA prohibits disclosure of “a record or information concerning the purchase ... [of written materials] by a customer that,indicates the identity of the customer,” VRPA § 2 (emphasis added), and defines “customer” as “a person who purchases .,. written material,” id. § 2(1 )(a). The parties dispute whether the “record or information” disclosed has to directly relate, to the purchase of Defendant’s magazines, such as a receipt or billing record, as opposed to merely being related to a person’s subscription.

Defendant argues that for the VRPA to prohibit disclosure of a record, that record or information must “identify Plaintiff as the purchaser of any of her magazine subscriptions.” Def. Mem. 27. To justify its interpretation, Defendant draws a comparison between’ the Michigan law and its federal analogue, the Video and Library Privacy Protection Act, which defines “consumer” more broadly as “any renter, purchaser, or subscriber.” 18 U.S.C, § 2710(a)(1) (emphasis added). Defendant reasons that the Michigan legislature, by defining “customer” more narrowly as a person “who purchases,” made a deliberate choice to exclude from the statute those records that merely disclose subscriber information. Def. Br. 29 <& n.14. Also in contrast to the Michigan VRPA, the federal law prohibits a provider from “knowingly disclosing], to any person, personally identifiable information concerning any consumer of such provider.” j.8 U.S.'C. §. 2710(b)(1). Defendant posits, therefore, that because it did not disclose Plaintiff’s identity as the purchaser of her subscriptions, those disclosures are not actionable.

Plaintiff, in response, argues that the use of the word “concerning” is intended to prohibit-a broad-range of disclosures “relating to; regarding; [or] about”-Plaintiffs magazine purchase. PL Opp. 12-13 .(quoting Bowman v. Greene, No. 308282, 2013 WL 5925995, at *10 (Mich. Ct. App. Nov. 5, 2013) (construing, in the context of disclosures of environmental issues, “concerning” as “relating to; - regarding; about”)). Plaintiff argues, therefore, that the VRPA prohibits “ ‘disclosure of information about, relating to, or regarding* Plaintiff’s magazine subscription.” Id. at 13.

The Court agrees with Defendant that “purchaser” is not synonymous with “subscriber,” and agrees with Plaintiff that disclosures “concerning the purchase” should be construed broadly. Thus, a disclosure that includes information solely connected to a gift or free subscription would not be actionable, but a disclosure that concerns, in broad terms, the purchase of that subscription would be actionable. ’

In analyzing the VRPA, the Michigan Supreme Court relied on the dictionary definition of “rent” to determine that “the word ‘rent’ contemplates some form of payment,” arid that a plaintiff under the VRPA who received a sound recording for free could not have a cause of action under the VRPA. Deacon v. Pandora Media, Inc., 499 Mich. 477, 885 N.W.2d 628, 632 (2016); see id. at 631-32 (“Because the [VRPA] was enacted in 1988, we consult dictionaries from that era to define those words.”). Webster’s dictionary' from 1988 defines “sell” as “to give up, deliver, or exchange (property, goods, services, etc.) for money or its equivalent,”' and “purchase” as “to obtain for money or by paying, a price.” Webster’s New ,World Dictionary', Third College Edition (1988). Webster’s defines “concern” as “to have a relation to or bearing on.” Id. The Court, therefore, gives “concern” this broad construction.

Thus, disclosure of a. record that shows a customer’s name, address, magazine title, and some additional information related to the purchase of that subscription is sufficient to be actionable. Cf. Bowman, 2013 WL 5925995, at *10.

ii.. “Disclose”

Defendant argues that the transmissions of Plaintiffs data that occurred were not “disclosures” under the VRPA because they were not made public. Defendant cites dictionaries, treatises, and case-law from within and outside Michigan to argue that “ ‘disclosure’ is synonymous with ‘publicity.’ ” Def. Mem. 31.

The Court disagrees. By Defendant’s own dictionary definition, “disclose” has the meaning “to make known or public”— suggesting that something, could be disclosed by being made known without being made public. Def. Mem. 30 (emphasis added) (quoting Webster’s Ninth New Collegiate Dictionary (1986)). As The Michigan Court of Appeals has noted, albeit in a different context: “The Legislature’s use of thé broad term ‘disclose’ precludes a cleric from revealing the covered statements to anyone, not simply before a court of law.” People v. Bragg, 296 Mich.App. 433, 824 N.W.2d 170, 181 (2012) (emphasis added). Further, although Defendant cites the Michigan invasion of privacy tort to argue that Michigan tort law requires public disclosure to be actionable, Def. Mem. 31, Defendant misses that only one of the four “types of invasion of privacy” requires “publicity” under Michigan law, see Lansing Ass’n of Sch. Adm’rs v. Lansing Sch. Dist. Bd. of Educ., 216 Mich.App. 79, 549 N.W.2d 15, 20 (1996).

Even assuming that Defendant is correct that “disclose” generally requires publicity, Defendant’s proposed interpretation of the VRPA is contrary to thé clear text of the statute. “Courts must give ef-feet to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute sur-plusage or nugatory.”. State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 644 N.W.2d 715, 717 (2002). The Michigan legislature prohibited disclosure “to any person, other than the customer.” VRPA § 2 (emphasis added). Defendant’s reading of the statute, to apply only to public disclosures, renders the words “to any person” superfluous. And' as the VRPA’s legislative history describes, the “apparent problem” the law addressed was that “[m]any in Michigan ,.. believe that one’s choice in videos, records, and books is nobody’s business but one’s oum” and that it is “a private matter ... not a fit subject for consideration by gossipy publications, employers, clubs, or anyone else, for that matter.” Mich. Leg. Analysis (emphasis added). To limit the scope of the statute to public disclosure would run contrary to the text and purpose of the statute.

Accordingly, the Court concludes that a disclosure need not be public to be actionable under the VRPA.

iii. “Employee or Agent” Exception

Finally, Defendant contends that the VRPA has an implicit exception for disclosures made to employees or agents. The Court agrees.

The statute prohibits “a person, or an employee or agent of the person” from disclosing a customer’s personal information, VRPA § 2; the prohibition against disclosure by an employee or agent would be unnecessary if the disclosure to an employee or agent would itself be actionable. See State Farm Fire & Cas. Co., 644 N.W.2d at 717. The Eastern District of Michigan implicitly recognized that such an exception exists, reasoning, on a motion to dismiss:

The nature and scope of an agency relationship is generally a question of fact. If a written agreement defines the scope of an agent-principal relationship, however, a Court must determine the nature of the relationship..., [T]his Court must take Plaintiffs’ allegations regarding the relationship between Defendant and its “unrelated” vendors as true. Whether these third-party vendors are agents within the VRPA’s statutory definition, therefore, is best left for discovery.

Cain v. Redbox Automated Retail, LLC, 981 F.Supp.2d 674, 684 (E.D. Mich. 2013) (citations omitted). Moreover, if a company was unable to disclose the name and purchase information of its customers to its employees, such as those who track billing or mail magazines, it would make operating a large business such as Defendant’s nearly impossible—an absurd result that surely was not the intention of the Michigan legislature. See People v. Tennyson, 487 Mich. 730, 790 N.W.2d 354, 361 (2010) (“[Statutes must be construed to prevent absurd results .... ” (alteration and omission in original) (quoting Rafferty v. Markovitz, 461 Mich. 265, 602 N.W.2d 367, 369 (1999))). This construction allows an employer to share an individual’s personal information with its employees and agents with the assurance that the employees and agents are prohibited by the VRPA from further disclosing such information. The Court concludes that the VRPA does not prohibit disclosures made to an employer’s employees or agents.

The parties further dispute the scope of this exception. The VRPA defines “employee” as “a person who works for an employer in exchange for wages or other remuneration,” and defines “employer” as “a person who has 1 or more employees.” VRPA § 1(b), (c). Defendant suggests that this definition has a wide scope, permitting disclosure to any third party that received remuneration for services they performed for Defendant. See Def. Reply 38. Plaintiff urges the Court to apply the “economic reality test,” which “looks to the totality of the circumstances surrounding the work performed.” Chilingirian v. City of Fraser, 194 Mich.App. 65, 486 N.W.2d 347, 349 (1992) (Chilingirian I) (citing Derigiotis v. J.M. Feighery Co., 185 Mich.App. 90,460 N.W.2d 235, 237 (1990)).

As the Michigan Court of Appeals has stated, “when interpreting the terms ‘employ,’ ‘employer,’ or ‘employee’ in different statutory and factual contexts, the existence of an employment relationship is typically determined by examining a number of factors.... The economic reality test is the most common tool for discerning whether an employee-employer relationship exists.” Buckley v. Prof'l Plaza Clinic Corp., 281 Mich.App. 224, 761 N.W.2d 284, 290 (2008). Chilingirian I applied the economic reality test to Michigan’s Whistleblowers’ Protection Act (“WPA”), which defines “employee” and “employer” in similar terms to the VRPA: the WPA defines “employee,” in relevant part, as “a person who performs a service for wages -or other remuneration under a contract of hire, written or oral, expressed or implied,” M.C.L. § 15.361 (a), and defines “employer,” in relevant part, as “a person who has 1 or more employees,” id. § 15.361(b). Furthermore, Michigan courts have applied the economic reality test in a variety of other contexts. Coblentz v. City of Novi, 475 Mich. 558, 719 N.W.2d 73, 85 (2006) (Freedom of Information Act); Derigiotis, 460 N.W.2d at 237 (Michigan’s Workers’ Disability Compensation Act); Farm Bureau Gen. Ins. Co. of Am. v. Westfield Ins. Co., No. 330961, 2017 WL 2348747, at *3 (Mich. Ct. App. May 30, 2017) (No-Fault Automobile Insurance Act); Buckley, 761 N.W.2d at 290 (Payment of Wages and Fringe Benefits Act). The Court, therefore, adopts the economic reality test in determining the scope of the employee exception.

Michigan courts have articulated a number of factors to consider under the economic reality test. In Chilingirian I, the Michigan Court of Appeals considered: “(1) control of a worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal.” 486 N.W.2d at 349. These factors will guide the Court’s determination about whether the entities to which Defendant disclosed Plaintiffs personal information are “employees” under the VRPA.

Finally, although the VRPA also mentions “agentfsj,” it does not define the term. Plaintiff asks the Court to adopt the “control test,” which examines “whether the principal has a right to control the actions of the agent.” Hart v. Comerica Bank, 957 F.Supp. 958, 978 (E.D. Mich. 1997) (quoting Meretta v. Peach, 195 Mich. App. 695, 491 N.W.2d 278, 280 (1992)); see also Pl. Opp. 26-27 (quoting Hart, 957 F.Supp. at 978). However, “the common law developed the ‘control test’ as an aid to determining whether to apply the doctrine of respondeat superior” and applies “where an injured plaintiff seeks to hold a third party responsible for the tort of another.” Pasieka v. Chaves, No. 304190, 2012 WL 5233619, at *4 (Mich. Ct. App. Oct. 23, 2012) (citing Nichol v. Billot, 406 Mich. 284, 279 N.W.2d 761, 764 (1979)). As the employee and agent exception under the VRPA is not an issue of respondeat superior, the Court does not find the “control test” to be appropriate. See id.

In order to determine what the Michigan legislature meant by “agent,” the Court first looks to dictionaries of the same vintage as the VRPA. See Deacon, 885 N.W.2d at 631-32. Turning again to Webster’s New World Dictionary from 1988, “agent” is' defined as; inter alia, a person, firm, etc. empowered to- act for another.” The Michigan Court of Appeals has adopted a similar definition in interpreting a statute that does not provide a definition for “agent”:

The [Michigan Civil Rights Act] does not define the term “agent,” so we may turn to- a dictionary for guidance , on its plain and ordinary meaning. An agent is “a person or business authorized to act on another’s behalf’ and “a person or thing that acts or has the power to act.” Random, House Webster’s College Dictionary (1997). And, if “agent” is considered a legal term, its meaning is the same: “[o]ne who is authorized to act for or in place of another.” Black’s Law Dictionary (7th ed). These definitions are consistent with general agency principles, Stephenson v. Golden (On Rehearing), 279 Mich. 710, 734-735, 276 N.W. 849 (1937), and the fact that “most employers' are corporate entities that cannot function without delegating supervisor power.” Champion [v. Nationwide Security, Inc., 450 Mich. 702,545 N.W.2d 596 (Mich. 1996)].

Elezovic v. Bennett, 274 Mich.App. 1, 731 N.W.2d 452, 458 (2007).

In determining whether a third party is an agent, a court considers the contract between the parties as one factor. See Fed. Ins. Co. v. Detroit Med. Ctr., No. 08-13322, 2009 WL 136866, at *9 (E.D. Mich. Jan. 16, 2009) (“Agency is a question of law when based' on an unambiguous contract.”); see also Potomac Leasing Co. v. The French Connection Shops, Inc., 172 Mich.App. 108, 431 N.W.2d 214, 216 (1988) (considering, among other evidence, the contract between the relevant parties and deposition evidence to determine whether agency relationship existed). However, the actions of the'parties also-are relevant. As the Michigan Supreme Court has long recognized: “An agent is a person having express or implied authority to represent or- act on behalf of another person, who is called his principal. ... Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under their agreements or acts.” Stephenson, 276 N.W. at 857 (emphasis added); see also, e.g., Potomac Leasing Co., 431 N.W.2d at 216. Thus, “one may'be both an independent contractor and an agent.” Douglas v. Pontiac Gen. Hosp., 182 Mich.App. 446, 452 N.W.2d 845, 846 (1990) (citing 41 Am. Jur. 2d, independent Contractors, § 2; 1 Restatement Agency, 2d, § 2(3)) (Batzer, J., dissenting), rev ’d for reasons stated in dissent, 438 Mich. 851, 473 N.W.2d 68 (1991).

Defendant argues that each of the disclosures it made were to third parties that “would be Hearst’s agents, not for all purposes ... but only regarding the receipt and handling of Plaintiffs” personal information. Def. Opp. 40 (citing Midwest Healthplan, Inc. v. Nat’l Med. Health Card Sys., Inc., 413 F.Supp.2d 823, 833 (E.D. Mich. 2005); People v. Belz, 257 Mich. 302, 241 N.W. 219, 220 (1932)). Defendant’s argument is not supported by law. In Midwest Healthplan, Inc., the agreement at issue “require[d] that Defendant pay the participating pharmacies’ claims on Plaintiffs behalf as the- manager of the prescription benefits program.” 413 F.Supp.2d at 833. This was sufficient to create a fiduciary relationship because “one person or entity ha[d] a duty to act for another on matters falling .within the scope of the relationship.” Id. Similarly, in Belz, “the defendant’s authority to withdraw corporate funds .,. was expressly conferred on him by resolution of the board of directors. He was made the agent of the company to handle its funds.” 241 N.W. at 220. In both cases, the principal explicitly empowered the agent to act on its. behalf. Moreover, in neither’ case cited by Defendant did the parties enter a contract that expressly disclaimed an agency relationship, as is the case here. Cf. Bergin Fin., Inc. v. First Am. Title Co., 397 Fed.Appx. 119, 126 (6th Cir. 2010). Defendant’s proposition would turn every contract with a confidentiality clause into a principal-agent relationship, and that cannot be.

Accordingly, the Court concludes that the VRPA contains an exception for disclosures made to bona fide agents or employees, and construes those terms as described above.

C. Unconstitutionally Vague

Defendant next argues that the VRPA, if construed as Plaintiff proposes, is unconstitutionally vague under the due process of clause of the Fourteenth Amendment. Because' the Court agrees with Defendant on its interpretation of “purchase” information and the employee/agent exception, see supra, the Court need only address Defendant’s argument that construing the VRPA to prohibit, disclosures “to any. person,” and not merely public disclosures, is unconstitutionally vague.

“A law is void for vagueness if it either (1) ‘fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or (2) lacks ‘explicit standards for those who apply [it].’” Expressions Hair Design v. Schneiderman, 808 F.3d 118, 142 (2d Cir. 2015) (alteration in original) (quoting VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186-87, 191 (2d Cir. 2010)), vacated and remanded on other grounds, — U,S. —, 137. S.Ct. 1144, 197 L.Ed.2d 442 (2017). Although Defendant does not specify whether its challenge to the statute is facial or as-applied, the Court construes .it as facial. See Def. Mem. 39 (“Because the VRPA, as Plaintiff urges, it.to be read, would leave one to guess at the meaning of ‘disclosure’ ,.. (because it would vary from the accepted meaning of [that] term[]) it.would lack the requisite clarity to impose civil or crimi