9th Cir. Dismisses Privacy Claim Due to Absence of Statutory Injury

In Jones v. Ford Motor Co., No. 22-35447, 2023 WL 7097365 (9th Cir. Oct. 27, 2023), the Court of Appeals for the 9th Circuit affirmed dismissal of a privacy class action due to absence of standing.  In Jones, the Owner of a vehicle equipped with “infotainment” system that automatically downloaded, copied, and indefinitely stored the call logs and text messages of any cellphone connected to it, and person with whom owner exchanged private text messages before owner had connected his cellphone to his vehicle’s on-board infotainment system, brought putative class action in state court against vehicle’s manufacturer alleging manufacturer made unlawful recordings of their private communications in violation of the Washington Privacy Act (WPA). Following removal, the United States District Court for the Western District of Washington, David G. Estudillo, J., 2022 WL 1423646, granted manufacturer’s motion to dismiss. Plaintiffs appealed.  The Court of Appeals held that: (1) the complaint alleged violation of substantive privacy right under the WPA, and thus plausibly articulated an Article III injury, as required to have standing; but (2) the complaint failed to allege an injury to plaintiffs’ business, person, or reputation, and thus failed to state a claim; and (3)  invasion of privacy, without more, is insufficient to meet the statutory injury requirements for WPA claim.

The Court of Appeals found plausible standing under Article III, but absence of injury to substantiate a claim under Washington’s WPA.

Here, the complaint alleges that the vehicle’s system downloads all text messages and call logs from Plaintiffs’ cellphones as soon as they are connected. The complaint also alleges that the infotainment system permanently stores the private communications without Plaintiffs’ knowledge or consent. At the pleading stage, those allegations plausibly articulate an Article III injury because they claim violation of a substantive privacy right. See Eichenberger, 876 F.3d at 983. Whether Plaintiffs “will be successful on the merits in [this] suit against [Ford] does not affect whether [they have] standing to pursue such a suit.” Iten v. Los Angeles, 81 F.4th 979, 990 (9th Cir. 2023) (citation omitted). Article III standing is thus satisfied, and the district court properly retained jurisdiction to hear this case.  . . .To bring a claim under the WPA, a plaintiff must show that “a violation of [the WPA] has injured his or her business, his or her person, or his or her reputation. A person so injured shall be entitled to actual damages … or liquidated damages.” WASH. REV. CODE § 9.73.060. On appeal, Plaintiffs claim that a violation of the WPA itself is an invasion of privacy that constitutes remediable injury. But the statutory text does not support their interpretation.
10It is well established that “[s]tatutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.” Whatcom Cnty. v. City of Bellingham, 128 Wash.2d 537, 909 P.2d 1303, 1308 (1996) (en banc); see also Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). If Plaintiffs’ understanding of the statute were sufficient to establish a claim, WPA Section 9.73.060 would be surplusage because a violation of the statute alone, without more, would automatically satisfy an injury to the person. Yet, the statute expressly requires an injury to one’s business, person, or reputation. We find it difficult to believe Washington intended such a redundant outcome.
This issue has been percolating through district courts in our circuit, and they have reached the same conclusion. See, e.g., Brinkley v. Monterey Fin. Servs., LLC, 340 F. Supp. 3d 1036, 1044–45 & n.3 (S.D. Cal. 2018) (finding that the invasion of privacy inherent in the unauthorized recording of an individual’s conversation, without more, is insufficient to meet the Section 9.73.060 injury requirement); Russo v. Microsoft Corp., No. 4:20-cv-04818-YGR, 2021 WL 2688850, at *3 n.3 (N.D. Cal. June 30, 2021) (finding that the WPA’s cause of action applies only to those claiming that a violation has injured business, person, or reputation).  We embrace this analysis and hold that an invasion of privacy, without more, is insufficient to meet the statutory injury requirements of Section 9.73.060. To succeed at the pleading stage of a WPA claim, Plaintiffs must allege an injury to “his or her business, his or her person, or his or her reputation.” WASH. REV. CODE § 9.73.060. Plaintiffs failed to do so here.1 We note that Plaintiffs were given an opportunity to amend their complaint but declined to do so.