Golden v. NBCUniversal Media: Reaffirming Solomon’s “Ordinary Person” Test for VPPA PII and Narrowing the “Intervening Supreme Court” Escape Hatch

1. Introduction

Golden v. NBCUniversal Media, LLC (2d Cir. Apr. 23, 2026) is a nonprecedential summary order affirming dismissal of a Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, action brought by Sherhonda Golden against NBCUniversal Media, LLC (“NBC”). Golden alleged that NBC’s website, Today.com, embedded the “Facebook Pixel” and thereby caused Facebook to receive (i) a unique Facebook identification number and (ii) URLs reflecting the specific videos she watched—without her consent.

The appeal presented two intertwined issues: (1) whether the alleged Facebook Pixel disclosure constitutes “personally identifiable information” under the VPPA; and (2) whether the panel could disregard binding Second Circuit precedent—Solomon v. Flipps Media, Inc., 136 F.4th 41 (2d Cir. 2025), cert. denied, 146 S.Ct. 885 (Dec. 8, 2025)—based on allegedly “intervening” Supreme Court decisions.

Although the order itself “DO[ES] NOT HAVE PRECEDENTIAL EFFECT,” it is significant as a practical roadmap for litigants: it confirms that, absent a true conflict with a later Supreme Court decision, Solomon governs VPPA pixel-based claims in the Second Circuit, and it underscores how difficult it is for a panel to treat intervening Supreme Court authority as having “broken the link” of circuit precedent.

2. Summary of the Opinion

The Second Circuit affirmed the Rule 12(b)(6) dismissal. Applying de novo review under Marcus & Cinelli, LLP v. Aspen American Insurance Co., 158 F.4th 333, 340 (2d Cir. 2025), the panel held:

• Solomon v. Flipps Media, Inc. is dispositive because Golden’s allegations are “substantially the same” as those rejected in Solomon.
• The Supreme Court decisions Golden cited—Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), CC/Devas (Mauritius) Ltd. v. Antrix Corp., 605 U.S. 223 (2025), A. J. T. ex rel. A. T. v. Osseo Area Schools, Independent School District No. 279, 605 U.S. 335 (2025), and (via Rule 28(j)) Rico v. United States, 607 U.S. ---, 146 S. Ct. 947 (2026)—do not conflict with, or undermine, Solomon.
• Under Gilead Community. Services, Inc. v. Town of Cromwell, 112 F.4th 93, 100 (2d Cir. 2024), circuit precedent remains binding unless overruled en banc or by the Supreme Court, subject only to a narrow “intervening Supreme Court” exception that was not satisfied here.

3. Analysis

3.1. Precedents Cited

(a) Solomon v. Flipps Media, Inc., 136 F.4th 41 (2d Cir. 2025)

Solomon is the engine of the outcome. There, the Second Circuit addressed whether data sent to Facebook via the Facebook Pixel qualifies as “personally identifiable information” (“PII”) under the VPPA, defined as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3).

Solomon adopted an “ordinary person” test: PII “encompasses information that would allow an ordinary person to identify a consumer’s video-watching habits, but not information that only a sophisticated technology company could use to do so.” 136 F.4th at 52. Applying that test, Solomon held that a Facebook Pixel transmission consisting of a URL (conveying video content watched) plus a unique Facebook ID was not PII because an “ordinary person could not, with little or no extra effort,” identify the user’s video-watching habits from what was disclosed. Id. at 54–55.

In Golden, the panel treats Solomon as directly controlling: materially indistinguishable facts require the same legal result.

(b) Gilead Community. Services, Inc. v. Town of Cromwell, 112 F.4th 93 (2d Cir. 2024)

Gilead supplies the doctrine Golden invoked to escape Solomon: a panel must follow circuit precedent “unless and until it is overruled either by an en banc panel of our Court or by the Supreme Court,” with a “narrow exception” when an intervening Supreme Court decision “broke the link” on which the prior decision rested. 112 F.4th at 100.

The Golden panel applies Gilead strictly: the exception requires “conflict, incompatibility, or inconsistency” between circuit precedent and the intervening Supreme Court decision, and must be used “cautiously” to avoid destabilizing the law.

(c) Marcus & Cinelli, LLP v. Aspen American Insurance Co., 158 F.4th 333 (2d Cir. 2025)

This case frames the standard for dismissal: the court accepts pleaded facts as true and asks whether the complaint plausibly states a claim. It matters because Golden’s problem is not factual insufficiency as pled (the panel assumes the Pixel transmission occurred), but legal insufficiency under the governing definition of VPPA PII as construed in Solomon.

(d) U.S. v. Peguero, 34 F.4th 143 (2d Cir. 2022)

Peguero is cited for the “mini-en banc procedure,” under which a three-judge panel may overrule circuit precedent only by circulating its opinion to all active judges and receiving no objection. 34 F.4th at 158 n.9. The citation reinforces that even if a panel were sympathetic to Golden’s argument, it lacks ordinary authority to depart from Solomon.

(e) The Supreme Court cases Golden invoked: Ames, CC/Devas, A. J. T., and Rico

The panel characterizes these decisions as applications of a familiar principle: courts may not add requirements beyond statutory text. But it distinguishes them as statute-specific corrections (Title VII in Ames, FSIA in CC/Devas, ADA/Rehabilitation Act in A. J. T., and the Sentencing Reform Act in Rico) that do not address the VPPA and do not contradict Solomon’s text-centered analysis of § 2710(a)(3) and § 2710(b).

3.2. Legal Reasoning

The decision proceeds in two steps:

1. Substantive VPPA step: The panel identifies the legal standard already chosen in Solomon for whether a disclosure is VPPA PII—the “ordinary person” test—and notes that Golden’s allegations track Solomon. Because the information allegedly disclosed (URL/video plus a unique Facebook identifier) was held not to be PII in Solomon, Golden’s VPPA claim fails as a matter of law.
2. Stare decisis/vertical-horizontal precedent step: Golden’s only meaningful appellate strategy is to argue that Solomon is no longer binding due to intervening Supreme Court law. The panel rejects this because the cited Supreme Court cases do not “break the link” of Solomon; rather, they confirm a method Solomon purportedly already used—statutory text as “lodestar.” Therefore, there is no qualifying “conflict, incompatibility, or inconsistency” under Gilead.

A key institutional point is embedded in the panel’s reasoning: disagreement with a circuit precedent’s “merits” is irrelevant at the panel level. Unless the Supreme Court or the circuit en banc actually undercuts the governing rule, panels enforce existing circuit law to maintain stability and predictability.

3.3. Impact

• VPPA Facebook Pixel litigation in the Second Circuit: The order signals that plaintiffs cannot plead around Solomon by recharacterizing the same Pixel transmission as PII. Unless plaintiffs allege materially different disclosures (e.g., data that an ordinary person could directly use to identify a viewer and the specific videos), Rule 12(b)(6) dismissal is likely.
• Strategy for “intervening Supreme Court” arguments: The panel’s application of Gilead is a warning: citing Supreme Court decisions about other statutes, even if they emphasize text-first interpretation, will rarely suffice. Litigants must identify a genuine doctrinal contradiction, not a general interpretive mood.
• Institutional/stare decisis discipline: By invoking Peguero’s “mini-en banc procedure,” the order reinforces the Second Circuit’s structural barriers to panel-driven doctrinal change—making en banc review or Supreme Court review the real pathways to revisiting Solomon.

4. Complex Concepts Simplified

• VPPA and “personally identifiable information” (PII): The VPPA prohibits a “video tape service provider” from “knowingly disclos[ing]” PII about a consumer’s video requests or purchases. The fight in these Pixel cases is whether the transmitted data actually “identifies” someone as having watched particular videos.
• “Ordinary person” test (from Solomon): Information counts as VPPA PII only if an ordinary person could use it to identify someone’s video-watching habits—rather than requiring special technical capability or access that only a sophisticated company (like a major platform) might have.
• Rule 12(b)(6) dismissal: Even assuming all alleged facts are true, the court dismisses if those facts do not amount to a legal violation under the governing statutory interpretation.
• Binding circuit precedent and the “intervening Supreme Court” exception: Panels must follow prior circuit decisions. They may depart only if a later Supreme Court decision directly undercuts the earlier reasoning (a true conflict), not merely because the Supreme Court reiterated general interpretive principles.
• “Mini-en banc procedure”: A rare internal Second Circuit mechanism allowing a panel to overrule precedent only after circulating its opinion to all active judges and receiving no objections—highlighting how exceptional such departures are.
• Summary order: This disposition is nonprecedential, meaning it does not itself create binding rules for future cases; its practical importance lies in how it applies (and thus confirms the ongoing force of) existing precedent.

5. Conclusion

Golden v. NBCUniversal Media is best understood as an enforcement decision: it applies Solomon v. Flipps Media, Inc. to dismiss another Facebook Pixel–based VPPA claim and rejects an attempt to evade binding circuit law by invoking Supreme Court cases addressing different statutes. The order underscores two takeaways: (1) in the Second Circuit, Solomon’s “ordinary person” test remains the controlling framework for VPPA PII in Pixel disclosure cases; and (2) the “intervening Supreme Court” exception to stare decisis, as articulated in Gilead Community. Services, Inc. v. Town of Cromwell, is narrow and demanding, preserving stability unless a genuine doctrinal conflict exists.