1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 The Reynolds and Reynolds Company, a No. CV-19-04849-PHX-GMS corporation, 10 ORDER Plaintiff, 11 v. 12 Mark Brnovich, et al., 13 Defendants, 14 and 15 Arizona Automobile Dealers Association, 16
17 Intervenor Defendant.
19 20 Before the Court is The Reynolds and Reynolds Company’s (“Plaintiff”) Motion 21 for Certification Pursuant to 28 U.S.C. § 1292(b) (Doc. 133). Plaintiff wishes to appeal 22 the Court’s dismissal of its CFAA and vagueness claims. Id. For the following reasons, 23 Plaintiff’s motion is denied. 24 BACKGROUND 25 On May 20, 2020, the Court granted in part and denied in part two motions to 26 dismiss brought by the Defendants and Intervenor-Defendant. (Doc. 91.) Subsequently, 27 the Court denied Plaintiff’s motion for preliminary injunction which sought to enjoin 28 enforcement of the Dealer Data Security Law (“the Dealer Law”) passed by the Arizona 1 Legislature. A.R.S. §§ 28-4651–4655. The facts and procedural history are known to the 2 parties and summarized in the Court’s Order. (Doc. 127.) Plaintiff filed a Notice of 3 Appeal, alerting the Court that it was appealing, pursuant to 28 U.S.C. § 1292(a)(1) and 4 pendant appellate jurisdiction, the denial of Plaintiff’s Motion for Preliminary Injunction 5 and the order granting in part and denying in part Defendants’ motions to dismiss. 6 (Doc. 129 at 2.) Plaintiff then filed the instant Motion for Certification, requesting 7 certification of the order on Defendants’ Motion to Dismiss for appeal to the Ninth Circuit. 8 (Doc. 133.) The Court deferred ruling on Plaintiff’s Motion for Certification, pending a 9 ruling from the Ninth Circuit on whether it would exercise pendent jurisdiction over the 10 Court’s order on Defendants’ Motion to Dismiss. (Doc. 141.) On October 25, 2021, the 11 Ninth Circuit declined to exercise pendent jurisdiction. (Doc. 158.) 12 DISCUSSION 13 I. Legal Standard 14 Ordinarily “parties may appeal only from orders which ‘end[] the litigation on the 15 merits and leave[] nothing for the court to do but execute the judgment.’” Couch v. 16 Telescope, Inc., 611 F.3d 629, 632 (9th Cir. 2010) (quoting Romoland Sch. Dist. v. Inland 17 Empire Energy Ctr., 548 F.3d 738, 747 (9th Cir. 2008)); 28 U.S.C. § 1291. Under a narrow 18 exception to the final judgment rule, a district court may certify an interlocutory order for 19 appeal if three requirements are met: (1) the order “involves a controlling question of law,” 20 (2) “as to which there is substantial ground for difference of opinion,” and (3) “that an 21 immediate appeal from the order may materially advance the ultimate termination of the 22 litigation.” 28 U.S.C. § 1292(b). 23 A substantial ground for difference of opinion exists where “the circuits are in 24 dispute on the question and the court of appeals of the circuit has not spoken on the point, 25 if complicated questions arise under foreign law, or if novel and difficult questions of first 26 impression are presented.” Couch, 611 F.3d at 633 (quoting 3 Fed. Proc., L. Ed. § 3:212 27 (2010)); cf. Facebook, Inc. v. Namecheap, Inc., No. CV-20-470-PHX-GMS, 2021 WL 28 961771, at *2 (D. Ariz. Mar. 15, 2021) (finding substantial ground for difference of opinion 1 when “[t]he Ninth Circuit has not spoken on this question, and district courts within the 2 Ninth Circuit, and in other circuits, are split on the issue”). “[J]ust because a court is the 3 first to rule on a particular question or just because counsel contends that one precedent 4 rather than another is controlling does not mean there is such a substantial difference of 5 opinion as will support an interlocutory appeal.” Couch, 611 F.3d at 633. 6 II. Analysis 7 First, the Court’s holding that the Computer Fraud and Abuse Act (“CFAA”) does 8 not preempt the Dealer Law does not present a substantial ground for difference of opinion. 9 Plaintiff’s cases stand for the proposition that users whose access to a computer system is 10 either revoked or never granted in the first instance act “without authorization” if they 11 subsequently attempt to access the system. See 18 U.S.C. § 1030(a); Facebook, Inc. v. 12 Power Ventures, Inc., 844 F.3d 1058, 1068 (9th Cir. 2016); United States v. Nosal, 844 13 F.3d 1024, 1038 (9th Cir. 2016); In re Dealer Mgmt. Sys. Antitrust Litig., 362 F. Supp. 3d 14 558, 570 (N.D. Ill. 2019). But that issue is distinct from whether the CFAA facially 15 preempts a state law that authorizes access. Plaintiff has cited no authority indicating that 16 the CFAA has ever preempted a state law, or that a state law can never provide the requisite 17 authorization under the CFAA.1 Therefore, Plaintiff has not established a substantial 18 ground for difference of opinion. See Union Cnty. v. Piper Jaffray & Co., 525 F.3d 643, 19 647 (8th Cir. 2008) (“‘While identification of a sufficient number of conflicting and 20 contradictory opinions would provide substantial ground for disagreement,’ the County 21 offered no such Iowa opinions, statutes or rules, and ‘a dearth of cases’ does not constitute 22 ‘substantial ground for difference of opinion’” (quoting White v. Nix, 43 F.3d 374, 378 (8th 23 Cir. 1994))). 24 1 Nor does the Supreme Court’s recent decision in Van Buren v. United States support 25 Plaintiff’s argument. 141 S. Ct. 1648, 1658 (2021). There, the Court appeared to indicate that it viewed the CFAA’s “without authorization” clause as protecting computers and 26 computer systems from “so-called outside hackers—those who ‘acces[s] a computer without any permission at all.’” Id. (quoting LVRC Holdings LLC v. Brekka, 581 F.3d 27 1127, 1133 (9th Cir. 2009)). This is consistent with this Court’s view that the purpose of the CFAA’s “without authorization” provision is to deter hackers and other high-tech 28 criminals, rather than to preempt state regulation in the fields of consumer privacy and data protection. (Doc. 91 at 7.) 1 Second, Plaintiff fails to establish a substantial ground for difference of opinion on 2 their vagueness claim. To start, determining whether the statute is unconstitutionally vague 3 does not present a “novel and difficult question.” Couch, 611 F.3d at 633. Even if the 4 Dealer Law’s precise text may present an issue of first impression, determining whether a 5 statute is impermissibly vague is a familiar task. See, e.g., Grayned v. City of Rockford, 6 408 U.S. 104 (1972); United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Nash v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 The Reynolds and Reynolds Company, a No. CV-19-04849-PHX-GMS corporation, 10 ORDER Plaintiff, 11 v. 12 Mark Brnovich, et al., 13 Defendants, 14 and 15 Arizona Automobile Dealers Association, 16
17 Intervenor Defendant.
19 20 Before the Court is The Reynolds and Reynolds Company’s (“Plaintiff”) Motion 21 for Certification Pursuant to 28 U.S.C. § 1292(b) (Doc. 133). Plaintiff wishes to appeal 22 the Court’s dismissal of its CFAA and vagueness claims. Id. For the following reasons, 23 Plaintiff’s motion is denied. 24 BACKGROUND 25 On May 20, 2020, the Court granted in part and denied in part two motions to 26 dismiss brought by the Defendants and Intervenor-Defendant. (Doc. 91.) Subsequently, 27 the Court denied Plaintiff’s motion for preliminary injunction which sought to enjoin 28 enforcement of the Dealer Data Security Law (“the Dealer Law”) passed by the Arizona 1 Legislature. A.R.S. §§ 28-4651–4655. The facts and procedural history are known to the 2 parties and summarized in the Court’s Order. (Doc. 127.) Plaintiff filed a Notice of 3 Appeal, alerting the Court that it was appealing, pursuant to 28 U.S.C. § 1292(a)(1) and 4 pendant appellate jurisdiction, the denial of Plaintiff’s Motion for Preliminary Injunction 5 and the order granting in part and denying in part Defendants’ motions to dismiss. 6 (Doc. 129 at 2.) Plaintiff then filed the instant Motion for Certification, requesting 7 certification of the order on Defendants’ Motion to Dismiss for appeal to the Ninth Circuit. 8 (Doc. 133.) The Court deferred ruling on Plaintiff’s Motion for Certification, pending a 9 ruling from the Ninth Circuit on whether it would exercise pendent jurisdiction over the 10 Court’s order on Defendants’ Motion to Dismiss. (Doc. 141.) On October 25, 2021, the 11 Ninth Circuit declined to exercise pendent jurisdiction. (Doc. 158.) 12 DISCUSSION 13 I. Legal Standard 14 Ordinarily “parties may appeal only from orders which ‘end[] the litigation on the 15 merits and leave[] nothing for the court to do but execute the judgment.’” Couch v. 16 Telescope, Inc., 611 F.3d 629, 632 (9th Cir. 2010) (quoting Romoland Sch. Dist. v. Inland 17 Empire Energy Ctr., 548 F.3d 738, 747 (9th Cir. 2008)); 28 U.S.C. § 1291. Under a narrow 18 exception to the final judgment rule, a district court may certify an interlocutory order for 19 appeal if three requirements are met: (1) the order “involves a controlling question of law,” 20 (2) “as to which there is substantial ground for difference of opinion,” and (3) “that an 21 immediate appeal from the order may materially advance the ultimate termination of the 22 litigation.” 28 U.S.C. § 1292(b). 23 A substantial ground for difference of opinion exists where “the circuits are in 24 dispute on the question and the court of appeals of the circuit has not spoken on the point, 25 if complicated questions arise under foreign law, or if novel and difficult questions of first 26 impression are presented.” Couch, 611 F.3d at 633 (quoting 3 Fed. Proc., L. Ed. § 3:212 27 (2010)); cf. Facebook, Inc. v. Namecheap, Inc., No. CV-20-470-PHX-GMS, 2021 WL 28 961771, at *2 (D. Ariz. Mar. 15, 2021) (finding substantial ground for difference of opinion 1 when “[t]he Ninth Circuit has not spoken on this question, and district courts within the 2 Ninth Circuit, and in other circuits, are split on the issue”). “[J]ust because a court is the 3 first to rule on a particular question or just because counsel contends that one precedent 4 rather than another is controlling does not mean there is such a substantial difference of 5 opinion as will support an interlocutory appeal.” Couch, 611 F.3d at 633. 6 II. Analysis 7 First, the Court’s holding that the Computer Fraud and Abuse Act (“CFAA”) does 8 not preempt the Dealer Law does not present a substantial ground for difference of opinion. 9 Plaintiff’s cases stand for the proposition that users whose access to a computer system is 10 either revoked or never granted in the first instance act “without authorization” if they 11 subsequently attempt to access the system. See 18 U.S.C. § 1030(a); Facebook, Inc. v. 12 Power Ventures, Inc., 844 F.3d 1058, 1068 (9th Cir. 2016); United States v. Nosal, 844 13 F.3d 1024, 1038 (9th Cir. 2016); In re Dealer Mgmt. Sys. Antitrust Litig., 362 F. Supp. 3d 14 558, 570 (N.D. Ill. 2019). But that issue is distinct from whether the CFAA facially 15 preempts a state law that authorizes access. Plaintiff has cited no authority indicating that 16 the CFAA has ever preempted a state law, or that a state law can never provide the requisite 17 authorization under the CFAA.1 Therefore, Plaintiff has not established a substantial 18 ground for difference of opinion. See Union Cnty. v. Piper Jaffray & Co., 525 F.3d 643, 19 647 (8th Cir. 2008) (“‘While identification of a sufficient number of conflicting and 20 contradictory opinions would provide substantial ground for disagreement,’ the County 21 offered no such Iowa opinions, statutes or rules, and ‘a dearth of cases’ does not constitute 22 ‘substantial ground for difference of opinion’” (quoting White v. Nix, 43 F.3d 374, 378 (8th 23 Cir. 1994))). 24 1 Nor does the Supreme Court’s recent decision in Van Buren v. United States support 25 Plaintiff’s argument. 141 S. Ct. 1648, 1658 (2021). There, the Court appeared to indicate that it viewed the CFAA’s “without authorization” clause as protecting computers and 26 computer systems from “so-called outside hackers—those who ‘acces[s] a computer without any permission at all.’” Id. (quoting LVRC Holdings LLC v. Brekka, 581 F.3d 27 1127, 1133 (9th Cir. 2009)). This is consistent with this Court’s view that the purpose of the CFAA’s “without authorization” provision is to deter hackers and other high-tech 28 criminals, rather than to preempt state regulation in the fields of consumer privacy and data protection. (Doc. 91 at 7.) 1 Second, Plaintiff fails to establish a substantial ground for difference of opinion on 2 their vagueness claim. To start, determining whether the statute is unconstitutionally vague 3 does not present a “novel and difficult question.” Couch, 611 F.3d at 633. Even if the 4 Dealer Law’s precise text may present an issue of first impression, determining whether a 5 statute is impermissibly vague is a familiar task. See, e.g., Grayned v. City of Rockford, 6 408 U.S. 104 (1972); United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Nash v. 7 United States, 229 U.S. 373 (1913); see also Association des Eleveurs de Canards et d’Oies 8 du Quebec v. Harris, 729 F.3d 937, 946 (9th Cir. 2013) (finding economic regulation 9 “subject to a less strict vagueness test than criminal laws” (quoting Great Am. Houseboat 10 Co. v. United States, 780 F.2d 741, 746 (9th Cir. 1986))). 11 Nor does Johnson create a substantial ground for difference of opinion. Johnson v. 12 United States, 576 U.S. 591, 603 (2015). There, the Court struck down a statute that 13 defined “violent felony” as including any felony “that . . . is burglary, arson, or extortion, 14 involves use of explosives, or otherwise involves conduct that presents a serious risk of 15 potential injury to another.” Id. at 593–94 (citing 18 U.S.C. § 924(e)(2)(B)). The 16 unconstitutional vagueness problems arose from two sources. First, the statute required 17 courts to ascertain the risk posed by a crime by considering a judicially imagined “‘ordinary 18 case’ of a crime” that “offer[ed] no reliable way to choose between . . . competing accounts 19 of what ‘ordinary’” cases were. Id. at 597. Second, the statutory language left “uncertainty 20 about how much risk it takes for a crime to qualify as a violent felony” since courts were 21 forced to compare the risk posed by the “ordinary case” of a crime “in light of the four 22 enumerated crimes,” which were each “far from clear in respect to the degree of risk” 23 posed. Id. at 598. However, the Court stressed that it did not “doubt the constitutionality 24 of laws that call for the application of a qualitative standard such as ‘substantial risk’ to 25 real-world conduct; ‘the law is full of instances where a man’s fate depends on his 26 estimating rightly . . . some matter of degree.’” Id. at 604 (quoting Nash, 229 U.S. at 377). 27 Unlike in Johnson, the Dealer Law calls for the application of a qualitative 28 standard—“unreasonable restriction”—to real world conduct, not a judicially imagined notion of what unreasonable conduct in the DMS industry may be. A.RS. § 28-4653(A)(3)(b); see Guerrero v. Whitaker, 908 F.3d 541, 545 (9th Cir. 2018) || (finding—under Johnson’s analysis—that since the “particularly serious crime” inquiry under 8 U.S.C. § 1231(b)(3)(B)(Gi) applied only to real world facts, it is “not □□ unconstitutionally vague on its face’”).? Therefore, Johnson does not establish substantial 6 || ground for difference of opinion. 7 CONCLUSION 8 Since Plaintiff has not established a substantial ground for difference of opinion on 9|| either theory, it fails to satisfy 28 U.S.C. § 1292(b)’s requirements for certification of 10 || interlocutory appeals. 11 IT IS THEREFORE ORDERED that Plaintiffs Motion for Certification Pursuant to 28 U.S.C. § 1292(b) (Doc. 133) is DENIED. 13 Dated this Ist day of December, 2021. 14 - 5 A Whacrsay Sooo) Whicren 16 Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 > While it is true that the statute does not specify the exact conduct it prohibits, the Court 27} is “confident that ‘reasonable’ [DMS licensers], experienced in the industry and well- schooled in” the custom of trade between dealerships and DMS licensers “will be able to 28] com ly” with its terms. Am. Coal Co. v. Fed. Mine Safety and Health Rev. Comm’n, 796 F.3d 13, 28 (D.C. Cir. 2015). _5-