FILED
NOT FOR PUBLICATION FEB 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS MURRAY, individually and No. 12-17591
on behalf of all others similarly situated,
D.C. No. 3:12-cv-00431-JSW
Plaintiff - Appellant,
v. MEMORANDUM*
TIME INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted February 12, 2014**
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
Nicholas Murray filed a purported class action against Time Inc. under
California’s “Shine the Light” (STL) law, Cal. Civ. Code §§ 1798.83-1798.84. He
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
appeals the district court’s dismissal of his claim for lack of statutory and Article
III standing.
Section 1798.83(a) of the STL law requires businesses, which disclose
customers’ personal information to third parties for direct marketing purposes, to
respond to a customer’s request to learn the identity of the third parties and the
types of personal information revealed to them. Cal. Civ. Code § 1798.83(a). To
facilitate these customer requests, a business must adopt at least one of three
methods to provide customers with necessary contact information for making
requests. See id. § 1798.83(b)(1)(A) (notify customer service employees), (b)(1)(B)
(update website), (b)(1)(C) (post physical notices at place of business).
Alternatively, a business is excused from section § 1798.83(a)’s requirement to
respond to customer requests, if it adopts a privacy policy which informs
customers of their right to prevent disclosure of their personal information and
provides a cost-free means to do so or evinces a policy of not disclosing
customers’ personal information to third parties for direct marketing purposes. Id.
§ 1798.83(c)(2).
The STL law provides three statutory remedies: (1) “Any customer injured
by a violation of [the STL law] may institute a civil action to recover damages,” id.
§ 1798.84(b); (2) “In addition, for a willful, intentional, or reckless violation of
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Section 1798.83, a customer may recover a civil penalty. . . . ,” id. § 1798.84(c);
and (3) “Any business that violates, proposes to violate, or has violated this title
may be enjoined,” id. § 1798.84(e).
The California Court of Appeal recently interpreted these provisions and
concluded that “a plaintiff must have suffered a statutory injury to have standing to
pursue a cause of action under the STL, regardless of the remedies he or she
seeks.” Boorstein v. CBS Interactive, Inc., 165 Cal. Rptr. 3d 669, 675 (Cal. Ct.
App. 2013). To plead a sufficient statutory injury, “a plaintiff must have made, or
attempted to make, a disclosure request in order to have standing under the STL.”
Id. at 673.
This “court is obligated to follow the decisions of [a] state’s intermediate
appellate courts” when “there is no convincing evidence that the state supreme
court would decide differently.” Ryman v. Sears, Roebuck and Co., 505 F.3d 993,
995 (9th Cir. 2007) (internal quotation marks omitted). Because Murray has failed
to allege that he submitted a request to Hearst under the STL law, or that he would
have, had accurate contact information been provided, he lacks standing to sue
under the STL law regardless of the remedy he seeks. Further, Boorstein negates
the district court’s arguendo assumption that standing to sue for injunctive relief
under the STL law could exist absent actual injury. 165 Cal. Rptr. 3d at 675.
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Therefore, we need not address the district court’s decision that Article III standing
was also lacking.
The district court’s dismissal is AFFIRMED.1
1
Murray’s motion to stay proceedings pending review of Boorstein v. CBS
Interactive, 165 Cal. Rptr. 3d 669, by the California Supreme Court is DENIED.
Boorstein has only requested review by the California Supreme Court.
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