Baptiste v. Apple Inc.

• Court: District Court, N.D. California
• Decided: March 13, 2023
• Docket: 4:22-cv-02888
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LUCILA BAPTISTE, et al., Case No. 22-cv-02888-HSG

8 Plaintiffs, ORDER GRANTING MOTION TO DISMISS 9 v. Re: Dkt. No. 24 10 APPLE INC., 11 Defendant.

12 13 Before the Court is Defendant’s motion to dismiss. Dkt. No. 24 (“Mot.”). The Court 14 found this matter appropriate for disposition without oral argument and took the motion under 15 submission. See Dkt. No. 31; Civil L.R. 7-1(b). The Court now GRANTS the motion. 16 I. BACKGROUND 17 Plaintiffs bring a proposed class action against Apple, alleging that it unlawfully retained 18 personally identifiable information (“PII”) collected in connection with video streaming rentals on 19 iTunes. See Dkt. No. 16 ¶ 1 (“First Amended Complaint” or “FAC”). This information includes 20 names, addresses, credit card information, and rental history. Id. Plaintiffs allege that years after 21 renting videos on iTunes, their account histories still displayed the video title, purchase date, and 22 price. Id. ¶¶ 10–20. Plaintiffs assert violations of the New York Video Consumer Privacy Act, 23 N.Y. Gen. Bus. Law §§ 670–75, and Minnesota Statute Sections 325I.01–05. Id. ¶¶ 69–90. 24 II. LEGAL STANDARD 25 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 26 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 27 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 1 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 2 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 3 Cir. 2008). 4 III. DISCUSSION 5 Defendant argues that the state statutes on which Plaintiffs rely do not create a private right 6 of action for retention of information—only for wrongful disclosure. See Mot. at 7–13. The 7 Court agrees and does not reach the remaining arguments.1 8 A. Relevant Law 9 The New York and Minnesota statutes at issue are nearly identical and prohibit “disclosure 10 of video tape rental records.” See N.Y. Gen. Bus. Law § 673; Minn. Stat. § 325I.02. Accordingly, 11 they allow consumers to sue a videotape service provider who “knowingly discloses, to any 12 person, personally identifiable information.” See N.Y. Gen. Bus. Law § 673(1); Minn. Stat. 13 § 325I.02(1). These wrongful disclosure provisions explicitly create civil liability. New York’s 14 provision states that a provider who knowingly discloses PII “shall be liable to the aggrieved 15 person for the relief provided in section six hundred seventy-five of this article.” N.Y. Gen. Bus. 16 Law § 673(1). In turn, Section 675, titled “civil liability,” states: “Any person found to be in 17 violation of this article shall be liable to the aggrieved consumer for all actual damages sustained 18 by such consumer s a result of the violation,” and creates a $500 minimum recovery. Similarly, 19 the Minnesota provision states that a provider who knowingly discloses PII “is liable to the 20 consumer for the relief provided in section 325I.03.” Minn. Stat. § 325I.02(1). Section 325I.03 21 then states: “The public and private remedies in section 8.31 apply to violations of 325I.02,” and 22 “[i]n addition, a consumer who prevails . . . in an action brought under this section is entitled to a 23 minimum of $500 in damages.”2 24

25 1 Defendant asks for judicial notice of Apple’s terms and conditions and privacy policy. Dkt. No. 24-1. The request is DENIED AS MOOT as the documents do not inform the Court’s analysis. 26

2 Section 8.31 lists legal violations that the attorney general has a duty to investigate. It also 27 provides for remedies, including damages, for “any person injured” by those violations. Minn. 1 In the same section as the wrongful disclosure provision, both statutes have a record 2 destruction provision (i.e., non-retention provision) that states: 3 A person subject to this section shall destroy personally identifiable information as soon as practicable, but no later than one year from the 4 date the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access 5 to the information under this section. 6 Id. § 325I.03(6); N.Y. Gen. Bus. Law § 673(5) (identical except ending in “information under this 7 article” instead of “section”). Unlike the wrongful disclosure provisions, the non-retention 8 provisions do not mention liability or refer to the civil liability sections. 9 These state statutes are modeled after a federal law called the Video Privacy Protection Act 10 (“VPPA”), 18 U.S.C. § 2710, enacted in 1988 after a newspaper published Judge Robert Bork’s 11 rental history during his failed Supreme Court confirmation proceedings. See Rodriguez v. Sony 12 Computer Ent. Am., LLC, 801 F.3d 1045, 1047 (9th Cir. 2015). The Act contains wrongful 13 disclosure and non-retention provisions nearly identical to those in the state statutes. See 18 14 U.S.C. § 2710(b), (e). Circuit courts have repeatedly found that the Act does not create a private 15 right of action for wrongful retention of personal information. See id. at 1053; Sterk v. Redbox 16 Automated Retail, LLC, 672 F.3d 535, 538 (7th Cir. 2012); Daniel v. Cantrell, 375 F.3d 377, 384 17 (6th Cir. 2004).3 18 B. Analysis 19 The Court finds that there is no private cause of action for retention of information under 20 either the New York Video Consumer Privacy Act, N.Y. Gen. Bus. Law §§ 670–75, or Minnesota 21 Statute Sections 325I.01–05. The Court’s finding is based on the construction and language of the 22 statutes, as well as the reasoning underlying courts’ consistent refusal to recognize this cause of 23 action under analogous federal law. 24 Most importantly, although the wrongful disclosure provisions include express language 25 linking the prohibitions to civil liability, the non-retention provisions do not. Compare N.Y. Gen. 26 Bus. Law § 673(1) with § 673(5) & Minn. Stat. § 325I.02(1) with § 325I.02(6). This contrast is 27 1 meaningful. If the Court were to interpret the non-retention provisions as creating private liability, 2 it would strip the liability language in the wrongful disclosure provisions of any purpose. See 3 Rodriguez v. Perales, 657 N.E. 2d 247, 249 (N.Y. 1995) (“It is well settled that . . . we must 4 assume that the Legislature did not deliberately place a phrase in the statute which was intended to 5 serve no purpose.”); Allan v. R.D. Offutt Co., 869 N.W. 2d 31, 33 (Minn. 2015) (courts must “give 6 effect to all of [a] statute’s provisions” so “no word, phrase, or sentence is deemed superfluous, 7 void, or insignificant”). Courts have relied on this reasoning in analyzing the federal VPPA. For 8 example, the following reasoning from Rodriguez applies equally here: 9 The unlawful disclosure provision explicitly provides for liability “to the aggrieved person.” However, the unlawful retention provision 10 does not specify that a video service provider is liable for the knowing retention of personal information. That provision lacks any mens reas 11 articulation and does not specify any form of available relief to an aggrieved party. Instead, the provision simply delineates a statutory 12 duty for the “[d]estruction of old records” by the video service provider, and does not otherwise provide for civil liability. 13 14 See 801 F.3d at 1050–51; see also Daniel, 375 F.3d at 379–80 (finding it “plain” that only the 15 wrongful disclosure provision can form the basis of liability because that is the only provision that 16 “includes language relating to liability”). In this regard, the New York and Minnesota statutes are 17 no different than the VPPA. 18 Other reasons for declining to recognize a private right of action for retention under the 19 VPPA also apply to the New York and Minnesota statutes. The Rodriguez court noted that 20 “[g]enerally, when the language of the statute is directed toward the entity being regulated, rather 21 than the party seeking relief, we have not recognized a private right of action.” 801 F.3d at 1051. 22 And Judge Posner observed that awarding damages for a violation of the non-retention provision 23 would not “make a lot of sense”: 24 How could there be injury, unless the information, not having been destroyed, were disclosed? If, though not timely destroyed, it 25 remained secreted in the video service provider's files until it was destroyed, there would be no injury. . . . [L]iquidated damages are 26 intended to be an estimate of actual damages, and if failure of timely destruction results in no injury at all because there is never any 27 disclosure, the only possible estimate of actual damages for violating [the timely destruction provision] would be zero. 1 Sterk, 672 F.3d at 538; see also Rodriguez, 801 F.3d at 1050. Finally, just like the VPPA, there is 2 nothing in the statutes or legislative history that “evince[s] any . . . intent to create a private right 3 of action” for retention. See Rodriguez, 801 F.3d at 1051–52. For example, the sponsor memo for 4 the New York law repeatedly describes the purpose and effect of the bill as protecting privacy by 5 “prohibiting public disclosure of information.” FAC, Ex. A. 6 Plaintiffs argue that (1) the overall structure of the VPPA differs from the state statutes; 7 and (2) the statutes’ “civil liability” sections refer broadly to “this section” and “this article.” Dkt. 8 No. 27 at 2, 5, 11. First, Plaintiffs are correct that courts have found it meaningful that the 9 VPPA’s liability section appears directly after the wrongful disclosure provision but before the 10 non-retention provision. See Rodriguez, 801 F.3d at 1050 (quoting Sterk, 672 F.3d at 538). In 11 contrast, the states’ liability sections appear at the end of the statute. But the placement of the 12 VPPA’s civil liability section was not the courts’ sole basis for finding that there was no private 13 right of action for non-retention, and the altered placement here does not undermine the Court’s 14 other reasons for finding the same. Overall, the lack of explicit reference to liability in the non- 15 retention provisions weighs more heavily than the fact that the liability section comes at the end of 16 the statute, which is common. Second, the argument that the liability sections use broad language 17 has already been addressed and rejected in the context of the VPPA, which uses the same “this 18 section” language in its “civil action” section. See Rodriguez, 801 F.3d at 1049–40, 1053 (noting 19 that “particular phrases must be construed in light of . . . the whole statutory scheme”).4 20 The Court recognizes the difficulty inherent in trying to interpret an apparently novel issue 21 of Minnesota and New York state law, since it “can’t grill” either legislature on the question. See 22 Sterk, 672 F.3d at 539. But the statutes’ plain language, considered in light of the case law 23 examining the analogous VPPA, supports the conclusion that there is no private right of action for 24 retention of personally identifiable information under the New York Video Consumer Privacy Act, 25 N.Y. Gen. Bus. Law §§ 670–75, or Minnesota Statute Sections 325I.01–05. 26

27 4 For the New York law, the reference to “this article” makes sense because the statute has two 1 IV. CONCLUSION 2 The Court GRANTS the motion to dismiss. The Court finds that leave to amend would be 3 futile. The “pleading could not possibly be cured by the allegation of other facts” since the basis 4 for the Court’s dismissal is a pure question of law. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th 5 Cir. 2000) (en banc) (quotation omitted). The Court therefore DISMISSES the case without leave 6 || toamend. The clerk is directed to enter judgment in favor of Defendant and close the case. 7 IT IS SO ORDERED. 8 Dated: = 3/13/2023 | □ | |

HAYWOOD S. GILLIAM, JR. 10 United States District Judge 11 12

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