NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LUCILA BAPTISTE; FREDERICK No. 23-15392 RAMOS, D.C. No. 4:22-cv-02888-HSG Plaintiffs-Appellants,
v.
APPLE INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding
BURKE MINAHAN; et al., No. 23-15775
Plaintiffs-Appellants, D.C. No. 4:22-cv-05652-YGR
v. MEMORANDUM* GOOGLE, LLC,
Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted February 14, 2024 San Francisco, California
Before: MILLER, BADE, and VANDYKE, Circuit Judges.
Plaintiffs appeal from the dismissal of their complaints in two putative class
actions alleging that Apple, Inc. (in No. 23-15392) and Google, LLC (in No. 23-
15775) violated New York and Minnesota privacy statutes through the unlawful
retention of personally identifiable information. Plaintiffs are consumers who
reside in New York or Minnesota and rented videos from defendants. They allege
that defendants collected their information and continue to retain it. They argue
that defendants’ retention of that information violates the New York Video
Consumer Privacy Act and the Minnesota Video Privacy Law and that those
statutes provide a private right of action for the wrongful retention of personal
information. We have jurisdiction under 28 U.S.C. § 1291, and we review
dismissals under Rule 12(b)(6) de novo. Wilson v. Craver, 994 F.3d 1085, 1089
(9th Cir. 2021). We affirm.
When construing state statutes, we apply state rules of statutory
interpretation. See Association des Eleveurs de Canards et d’Oies du Quebec v.
Harris, 729 F.3d 937, 945 (9th Cir. 2013). Under New York law, “a court’s
primary consideration is to ascertain and give effect to the intention of the
Legislature.” Walsh v. New York State Comptroller, 144 N.E.3d 953, 955 (N.Y.
2 2019) (citation omitted). If the text is unambiguous, the court must give effect to
its plain meaning. Id. The same is true in Minnesota. See Swanson v. Brewster, 784
N.W.2d 264, 274 (Minn. 2010).
The New York and Minnesota statutes prohibit the “wrongful disclosure of
video tape rental records.” N.Y. Gen. Bus. Law § 673; see Minn. Stat. § 325I.02.
The statutes also contain express remedial provisions that allow consumers to sue
any video provider who “knowingly discloses, to any person, personally
identifiable information.” N.Y. Gen. Bus. Law § 673(1); Minn. Stat. § 325I.02(1).
Section 675 of New York’s statute, titled “Civil liability,” states: “Any person
found to be in violation of this article shall be liable to the aggrieved consumer for
all actual damages sustained by such consumer as a result of the violation.” N.Y.
Gen. Bus. Law § 675(1). Minnesota’s statute similarly states: “The public and
private remedies in section 8.31 [listing legal violations which the attorney general
must investigate] apply to violations of section 325I.02.” Minn. Stat. § 325I.03.
Both statutes also contain, in the same sections as the nondisclosure
provisions, non-retention provisions. These state that a person subject to the
nondisclosure section “shall destroy personally identifiable information as soon as
practicable, but no later than one year from the date the information is no longer
necessary for the purpose for which it was collected.” N.Y. Gen. Bus. Law
§ 673(5); Minn. Stat. § 325I.02(6).
3 Plaintiffs seize on the New York remedial provision, which imposes liability
on individuals “found to be in violation of this article,” N.Y. Gen. Bus. Law
§ 675(1) (emphasis added), and analogous language in the Minnesota statute
stating that remedies are available to those aggrieved by “violations of section
325I.02,” Minn. Stat. § 325I.03 (emphasis added). They claim that because the
non-retention provisions fall within “this article” under the New York statute and
within “section 325I.02” under the Minnesota statute, the remedial provisions
create a private right of action for violations of the non-retention provisions.
That argument overlooks that both non-disclosure provisions directly
reference separate statutory provisions that allow for civil liability and the recovery
of monetary damages. See N.Y. Gen. Bus. Law § 673(1) (“A video tape service
provider who knowingly discloses . . . personally identifiable information . . . shall
be liable to the aggrieved person for the relief provided in section six hundred
seventy-five of this article.”); Minn. Stat. § 325I.02(1) (“[A] videotape service
provider or videotape seller who knowingly discloses personally identifiable
information . . . is liable to the consumer for the relief provided in section
325I.03.”). But the non-retention provisions of each statute are different: They lack
language that links them to the civil liability provisions. See N.Y. Gen. Bus. Law
This absence is meaningful because reading the non-retention provisions to
4 create a private right of action would deprive the liability language in the
wrongful-disclosure provisions of any purpose. We thus decline to adopt plaintiffs’
interpretation because “[i]t is well settled that . . . [courts] must assume that the
Legislature did not deliberately place a phrase in the statute which was intended to
serve no purpose.” Rodriguez v. Perales, 657 N.E.2d 247, 249 (N.Y. 1995)
(citation omitted); see Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.
1999) (“[N]o word, phrase, or sentence should be deemed superfluous, void, or
insignificant” when interpreting a statute.).
Plaintiffs respond that adopting this interpretation of the statute creates
another surplusage problem: It leaves the words “this article,” N.Y. Gen. Bus. Law
§ 675, and “section 325I.02,” Minn. Stat. § 325.03, without meaning. But
“[p]articular phrases must be construed in light of the overall purpose and structure
of the whole statutory scheme.” United States v. Neal, 776 F.3d 645, 652 (9th Cir.
2015) (citation omitted). And nothing in the statutory texts suggests that the state
legislatures intended to create a private right of action for retention. We therefore
decline to place undue weight on the phrases plaintiffs highlight and instead
employ “accepted principles of statutory construction to interpret . . . imperfectly
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LUCILA BAPTISTE; FREDERICK No. 23-15392 RAMOS, D.C. No. 4:22-cv-02888-HSG Plaintiffs-Appellants,
v.
APPLE INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding
BURKE MINAHAN; et al., No. 23-15775
Plaintiffs-Appellants, D.C. No. 4:22-cv-05652-YGR
v. MEMORANDUM* GOOGLE, LLC,
Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted February 14, 2024 San Francisco, California
Before: MILLER, BADE, and VANDYKE, Circuit Judges.
Plaintiffs appeal from the dismissal of their complaints in two putative class
actions alleging that Apple, Inc. (in No. 23-15392) and Google, LLC (in No. 23-
15775) violated New York and Minnesota privacy statutes through the unlawful
retention of personally identifiable information. Plaintiffs are consumers who
reside in New York or Minnesota and rented videos from defendants. They allege
that defendants collected their information and continue to retain it. They argue
that defendants’ retention of that information violates the New York Video
Consumer Privacy Act and the Minnesota Video Privacy Law and that those
statutes provide a private right of action for the wrongful retention of personal
information. We have jurisdiction under 28 U.S.C. § 1291, and we review
dismissals under Rule 12(b)(6) de novo. Wilson v. Craver, 994 F.3d 1085, 1089
(9th Cir. 2021). We affirm.
When construing state statutes, we apply state rules of statutory
interpretation. See Association des Eleveurs de Canards et d’Oies du Quebec v.
Harris, 729 F.3d 937, 945 (9th Cir. 2013). Under New York law, “a court’s
primary consideration is to ascertain and give effect to the intention of the
Legislature.” Walsh v. New York State Comptroller, 144 N.E.3d 953, 955 (N.Y.
2 2019) (citation omitted). If the text is unambiguous, the court must give effect to
its plain meaning. Id. The same is true in Minnesota. See Swanson v. Brewster, 784
N.W.2d 264, 274 (Minn. 2010).
The New York and Minnesota statutes prohibit the “wrongful disclosure of
video tape rental records.” N.Y. Gen. Bus. Law § 673; see Minn. Stat. § 325I.02.
The statutes also contain express remedial provisions that allow consumers to sue
any video provider who “knowingly discloses, to any person, personally
identifiable information.” N.Y. Gen. Bus. Law § 673(1); Minn. Stat. § 325I.02(1).
Section 675 of New York’s statute, titled “Civil liability,” states: “Any person
found to be in violation of this article shall be liable to the aggrieved consumer for
all actual damages sustained by such consumer as a result of the violation.” N.Y.
Gen. Bus. Law § 675(1). Minnesota’s statute similarly states: “The public and
private remedies in section 8.31 [listing legal violations which the attorney general
must investigate] apply to violations of section 325I.02.” Minn. Stat. § 325I.03.
Both statutes also contain, in the same sections as the nondisclosure
provisions, non-retention provisions. These state that a person subject to the
nondisclosure section “shall destroy personally identifiable information as soon as
practicable, but no later than one year from the date the information is no longer
necessary for the purpose for which it was collected.” N.Y. Gen. Bus. Law
§ 673(5); Minn. Stat. § 325I.02(6).
3 Plaintiffs seize on the New York remedial provision, which imposes liability
on individuals “found to be in violation of this article,” N.Y. Gen. Bus. Law
§ 675(1) (emphasis added), and analogous language in the Minnesota statute
stating that remedies are available to those aggrieved by “violations of section
325I.02,” Minn. Stat. § 325I.03 (emphasis added). They claim that because the
non-retention provisions fall within “this article” under the New York statute and
within “section 325I.02” under the Minnesota statute, the remedial provisions
create a private right of action for violations of the non-retention provisions.
That argument overlooks that both non-disclosure provisions directly
reference separate statutory provisions that allow for civil liability and the recovery
of monetary damages. See N.Y. Gen. Bus. Law § 673(1) (“A video tape service
provider who knowingly discloses . . . personally identifiable information . . . shall
be liable to the aggrieved person for the relief provided in section six hundred
seventy-five of this article.”); Minn. Stat. § 325I.02(1) (“[A] videotape service
provider or videotape seller who knowingly discloses personally identifiable
information . . . is liable to the consumer for the relief provided in section
325I.03.”). But the non-retention provisions of each statute are different: They lack
language that links them to the civil liability provisions. See N.Y. Gen. Bus. Law
This absence is meaningful because reading the non-retention provisions to
4 create a private right of action would deprive the liability language in the
wrongful-disclosure provisions of any purpose. We thus decline to adopt plaintiffs’
interpretation because “[i]t is well settled that . . . [courts] must assume that the
Legislature did not deliberately place a phrase in the statute which was intended to
serve no purpose.” Rodriguez v. Perales, 657 N.E.2d 247, 249 (N.Y. 1995)
(citation omitted); see Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.
1999) (“[N]o word, phrase, or sentence should be deemed superfluous, void, or
insignificant” when interpreting a statute.).
Plaintiffs respond that adopting this interpretation of the statute creates
another surplusage problem: It leaves the words “this article,” N.Y. Gen. Bus. Law
§ 675, and “section 325I.02,” Minn. Stat. § 325.03, without meaning. But
“[p]articular phrases must be construed in light of the overall purpose and structure
of the whole statutory scheme.” United States v. Neal, 776 F.3d 645, 652 (9th Cir.
2015) (citation omitted). And nothing in the statutory texts suggests that the state
legislatures intended to create a private right of action for retention. We therefore
decline to place undue weight on the phrases plaintiffs highlight and instead
employ “accepted principles of statutory construction to interpret . . . imperfectly
drafted statute[s].” Rodriguez v. Sony Comput. Ent. Am., LLC, 801 F.3d 1045, 1051
(9th Cir. 2015).
Plaintiffs also point to the federal Video Privacy Protection Act, noting that
5 its remedial provision, 18 U.S.C. § 2710(c), appears directly after the
nondisclosure provision, 18 U.S.C. § 2710(b), but before its non-retention
provision, 18 U.S.C. § 2710(e). In New York and Minnesota, however, the
remedial provision appears after all provisions that lay out obligations, including
the non-retention provisions. Whatever structural inference might be drawn from
comparing the state and federal statutes is insufficient to overcome the textual
reality that the non-retention provisions of these statutes do not contain liability
language.
Finally, we decline plaintiffs’ suggestion that we certify this question to the
highest courts of New York and Minnesota. “Certification is not to be ordered
lightly.” Bliss Sequoia Ins. & Risk Advisors, Inc. v. Allied Prop. & Cas. Ins. Co.,
52 F.4th 417, 423 (9th Cir. 2022). As we have explained, this case presents a
straightforward issue of statutory interpretation. It does not warrant protracted
litigation in state court.
Google’s motion for judicial notice (No. 23-15775 Dkt. No. 23) is
DENIED.
AFFIRMED.