The Ninth U.S. Circuit Court of Appeals recently rejected an appeal of a district court’s dismissal of a claim made under California’s “Shine the Light,” holding that the plaintiff failed to demonstrate harm, since she never actually requested information from the defendant under the law, and thus lacked standing to sue.
Seeking $3,000 in statutory damages per violation, Charlotte Baxter filed suit against publisher Rodale in January 2012. The Shine the Light law, California Civil Code §1798.83, mandates that companies that sell consumer lists must allow Californians to either opt out or, upon request, be notified about who purchased their information. Companies must provide contact information (a toll-free phone number or mailing address) for customers making requests under the law; Internet-only businesses have specific requirements about posting contact information in their privacy policies about how to make a request.
Baxter, a Runner’s World subscriber, said Rodale “collects and stores a wealth of information about its subscribers, and shares such data with third parties for direct marketing purposes.” She alleged that the publisher willfully denies users the opportunity to exercise their rights under the Shine the Light law by failing to make the required disclosures on its website.
A federal court judge dismissed the suit and Baxter appealed. In a brief unpublished opinion, the 9th Circuit affirmed, albeit on different grounds. The three-judge panel relied upon a decision from the California Courts of Appeal holding that Shine the Light plaintiffs have to allege they suffered a statutory injury in order to establish standing to sue.
Following the ruling, the court said that Baxter had not actually suffered an injury under the statute. “Because Baxter has failed to allege that she submitted a request to Rodale under the [Shine the Light] law, or that she would have, had accurate contact information been provided, the district court erred when it found she had statutory standing,” the panel wrote.
The court also dismissed the plaintiff’s claim under the state’s unfair competition law because California does not recognize informational injury, leaving Baxter without an alleged injury in fact.
To read the complaint in Baxter v. Rodale, click here.
To read the opinion in Baxter v. Rodale, click here.
Why it matters: Plaintiffs have yet to achieve success under California’s 2003 Shine the Light law. In addition to the decision in Baxter, the 9th Circuit issued nearly identical opinions days earlier in two other suits against Hearst Communications and Conde Nast. The trio provides a good example of plaintiffs’ struggles to establish standing and injury under the statute. Although the 9th Circuit’s opinion is unpublished, the court’s recognition that California does not recognize informational injury should allow businesses a sigh of relief.
