Michael Greenstein v. Noblr Reciprocal Exchange

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2024
• Docket: 22-17023
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL GREENSTEIN; CYNTHIA No. 22-17023 NELSON; SINKWAN AU, individually and on behalf of themselves and all other persons D.C. No. similarly situated, 4:21-cv-04537-JSW

Plaintiffs-Appellants, MEMORANDUM* v.

Noblr Reciprocal Exchange, a Colorado corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, Senior District Judge, Presiding

Argued and Submitted February 14, 2024 San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

Plaintiffs-Appellants Michael Greenstein, Cynthia Nelson, and Sinkwan Au

filed this putative class action against Defendant-Appellee Noblr Reciprocal

Exchange after their driver’s license numbers were targeted in a cyberattack. The

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. attackers, whose identities remain anonymous, conducted the attack by manipulating

Noblr’s online insurance quote system to gain access to an unknown number of

victims’ driver’s license numbers. Greenstein and Nelson have not alleged any

misuse of their driver’s license numbers after the attack, while Au has alleged that

her driver’s license number was used in an unsuccessful application for New York

unemployment benefits shortly thereafter. Plaintiffs allege negligence and

violations of federal and state consumer protection law, 18 U.S.C. § 2724 (“DPPA”),

Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”). They seek damages as well as

declaratory and injunctive relief.

After Noblr filed its first motion to dismiss, the district court dismissed

Plaintiffs’ claims on standing grounds with leave to amend. Plaintiffs amended their

class complaint in response, and Noblr again moved to dismiss. The district court

again dismissed Plaintiffs’ claims for lack of standing, this time with prejudice. “We

review a district court’s dismissal under Rule 12(b)(1) for lack of standing de novo,”

Unified Data Servs., LLC v. Fed. Trade Comm’n, 39 F.4th 1200, 1209 (9th Cir.

2022), and we affirm.

To establish standing, a plaintiff must allege an injury in fact that is fairly

traceable to the defendant and likely redressable by a favorable judicial decision.

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). The injury must be “concrete,

particularized, and actual or imminent.” TransUnion LLC v. Ramirez, 594 US. 413,

2 423 (2021). “On appeal from a motion to dismiss, a plaintiff need only show that

the facts alleged, if proven, would confer standing.” Krottner v. Starbucks Corp.,

628 F.3d 1139, 1141 (9th Cir. 2010).

Plaintiffs argue they have satisfied their burden to plead an injury in fact by

alleging an increased risk of future identity theft stemming from the cyberattack.

Under Krottner, plaintiffs “whose personal information has been stolen but not

misused” can establish injury if they “face[] a credible threat of harm, and that harm

is both real and immediate, not conjectural or hypothetical.” Id. at 1143 (internal

quotation marks and citations omitted). Put another way, “the sensitivity of the

personal information, combined with its theft,” can establish an injury when it

creates “a substantial risk that the [] hackers will commit identity fraud or identity

theft” in the future. In re Zappos.com, Inc., 888 F.3d 1020, 1027, 1029 (9th Cir.

2018).

Here, however, Plaintiffs cannot rely on the future risk of identity theft to

establish an actual or imminent injury because unlike the plaintiffs in Krottner and

Zappos, they have not adequately alleged their driver’s license numbers were among

those stolen in the attack on Noblr’s quote system. Their allegations rely heavily on

a notice Noblr sent to 97,633 individuals—including Plaintiffs—several months

after the attack. But the description of the attack provided in the Notice, which

accounts for the bulk of the factual allegations included in the complaint, is

3 ultimately insufficient to establish that Plaintiffs’ driver’s license numbers were

stolen.

While the Notice does confirm that “the attackers were able to access driver’s

license numbers,” it stops short of confirming that any individual recipient of the

Notice had his or her driver’s license number stolen. It does not confirm which or

how many driver’s license numbers were accessed, nor does it confirm whether the

driver’s license numbers of all 97,633 recipients of the Notice were taken from

Noblr’s website. Instead, in explaining “[w]hat [i]nformation [w]as [i]nvolved,” the

Notice states only that each recipient’s “name, driver’s license number, and address

may have been accessed.” (emphasis added). After reading the Notice, all that a

reasonable reader would know for certain is that Noblr suffered a cyberattack, some

driver’s license numbers were taken as a result, and his own driver’s license number

may (or may not) have been among those stolen. Aside from the factual allegations

pulled from the Notice, Plaintiffs provide no additional allegations that might

provide a credible basis to conclude their driver’s license numbers were taken.1

1 Plaintiffs’ contention that their driver’s license numbers were published in Noblr’s website’s source code and publicly available to steal en masse, for example, is contradicted by the version of events included in the Notice, which explains that the attack was conducted by manipulating the online quote system on an individual, query-by-query basis that would have required the hackers to already have other personal information about the victims in their possession. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (explaining that the court need not accept as true allegations that are contradicted).

4 Plaintiffs’ allegations reflect the uncertainty associated with the version of

events contained in the Notice. For example, Plaintiffs assert that “at least 97,633

people were affected” by the cyberattack, but they do not explain in what manner

each person was “affected.” Likewise, throughout the complaint Plaintiffs allege

that Noblr “exposed” their driver’s license numbers to third parties, but an “exposed”

driver’s license number is different from a “stolen” one. In similar fashion, Plaintiffs

state that their “driver’s license number[s] and address[es] may have been accessed,”

and frame the “actual injury” they suffered as stemming “from having [their] PI

exposed”—not from having it stolen. (emphasis added).

It is true that elsewhere in the complaint, Plaintiffs include at least some

affirmative allegations that their driver’s license numbers were stolen. But these

allegations are conclusory and unsupported by their heavy reliance on the facts

contained in the Notice. Au, for example, alleges explicitly that “her driver’s license

number was stolen shortly before she experienced [the] fraudulent unemployment

claim.” And all three Plaintiffs allege that “the thieves … exfiltrate[d] individuals’

PI” and that “Plaintiffs[’] … PI was taken.” These definitive conclusions are

unwarranted in light of the uncertain version of events on which Plaintiffs have built

their complaint. “[T]he court [is not] required to accept as true allegations that are

merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018).

5 Where, as here, Plaintiffs have not sufficiently alleged that their personal

information was actually stolen, they cannot rely on the increased risk such a theft

might have posed had it occurred. In Krottner, our court noted that we would “find

the threat far less credible” if the plaintiffs’ “allegations [were] more conjectural or

hypothetical—for example, if no laptop had been stolen, and Plaintiffs had sued

based on the risk that it would be stolen at some point in the future.” 628 F.3d at

1143. This case presents the kind of “far less credible” allegations envisioned by

Krottner. Plaintiffs’ standing argument, which is ultimately premised on a

“speculative chain of possibilities” about the potential consequences stemming from

the manipulation of Noblr’s online quote system, does not satisfy their burden of

pleading an actual or imminent injury. Clapper v. Amnesty Int’l USA, 568 U.S. 398,

414 (2013).

Because Plaintiffs have not established a sufficient risk of future harm, their

argument that they have alleged separate concrete harms stemming from that risk

also fails. Only when the risk of future harm is not speculative can the cost of

mitigation efforts form a basis for standing. Having alleged only a speculative risk

of harm, Plaintiffs “cannot manufacture standing merely by inflicting harm on

themselves based on their fears of hypothetical future harm that is not certainly

impending.” Clapper, 568 U.S. at 416.

6 Nor does the DPPA provide a basis for standing. Although Congress can

“elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that

were previously inadequate in law,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 578

(1992), plaintiffs seeking to establish standing for such statutory harms must

“identif[y] a close historical or common-law analogue for their asserted injury,”

TransUnion LLC, 594 U.S. at 424. Plaintiffs seek to analogize their claims under

the DPPA to the common law torts of intrusion upon seclusion, invasion of privacy,

and public disclosure of private facts. But the disclosure of driver’s license numbers

is neither “highly offensive,” Hernandez v. Hillsides, Inc., 211 P.3d 1063, 1072 (Cal.

2009) (intrusion upon seclusion), “an egregious breach of the social norms,” id. at

1073 (quoting Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 655 (Cal. 1994))

(invasion of privacy), nor “offensive and objectionable to the reasonable person,”

Shulman v. Grp. W Prods., Inc., 955 P.2d 469, 478 (Cal. 1998) (quoting Diaz v.

Oakland Trib., Inc., 188 Cal. Rptr. 762, 768 (Ct. App. 1983)) (public disclosure of

private facts).

Even assuming Plaintiff Au sufficiently pled injury by alleging that her

driver’s license number was used in the fraudulent application for unemployment

benefits in New York, Au has failed to establish that such injury is “‘fairly traceable’

to the conduct being challenged.” Zappos, 888 F.3d at 1029.

7 First, the unknown third parties who conducted the attack would have needed

to possess other information about Au—including her name and date of birth—

before the attack to steal her driver’s license number from Noblr’s website. Second,

under New York law, a Social Security number is required to apply for

unemployment benefits.2 N.Y. Comp. Codes R. & Regs. tit. 12, § 473.1(f) (“Each

claimant shall furnish his/her Social Security account number as a condition of

eligibility for benefits.”). Finally, Au’s Social Security number did in fact become

linked with the fraudulent application.

Taken together, these facts are strong evidence that the attackers already

possessed personal information about Au before the Noblr cyberattack and gained

additional personal information required to complete the application in cyberattacks

unrelated to the incident involving Noblr’s quote system. Given that multiple attacks

must have occurred, Au alleges no credible basis for why the attack on Noblr’s

system was the source of the information used in the application for benefits. This

case is therefore unlike Zappos, where the most the defendant could say was that

some other data breach “might [also] have caused the plaintiffs’ private information

2 The parties dispute the propriety of Noblr’s request that this court take judicial notice of the benefits application requirements as displayed on the New York State Department of Labor website. But given that the Social Security number requirement is confirmed by regulation, the court need not refer to the website to conclude that at least some personal information other than a driver’s license number is required to apply. Noblr’s request for judicial notice is therefore denied as moot.

8 to be exposed.” 888 F.3d at 1029 (alteration in original). Au has failed to prove that

her injuries stem from “the challenged action of the defendant, and not … the

independent action of some third party not before the court.” Lujan, 504 U.S. at

560–61 (internal quotation marks omitted).

Finally, because Plaintiffs have not requested any further leave to amend, we

decline to remand for further amendment of the complaint.

AFFIRMED.