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NOT FOR PUBLICATION FEB 18 2014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
BRIAN KING, individually and on behalf No. 12-57209
of all others similarly situated,
D.C. No. 2:12-cv-00719-GHK-E
Plaintiff - Appellant,
v. MEMORANDUM*
CONDE NAST PUBLICATIONS, a
Delaware corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Submitted February 12, 2014**
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
Brian King filed a purported class action against Conde Nast Publications
under California’s “Shine the Light” (STL) law, Cal. Civ. Code §§ 1798.83-
*
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).
1798.84, and Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200-
17210. He appeals the district court’s dismissal of his claims for lack of statutory
standing.
1. 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.
-2-
§ 1798.84(b); (2) “In addition, for a willful, intentional, or reckless violation of
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 King has failed to
allege that he submitted a request to Conde Nast under the STL law, or that he
would have, had accurate contact information been provided, he lacks standing to
sue under the STL law.
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2. “The UCL provides that to pursue a claim for relief under the statute, an
individual must have ‘suffered injury in fact and ha[ve] lost money or property as a
result of the unfair competition.’” Boorstein, 165 Cal. Rptr. 3d at 681 (quoting Cal.
Bus. & Prof. Code § 17204). King has failed to allege an injury in fact, because (1)
California does not recognize informational injury, id. at 680;1 and (2) Conde
Nast’s compliance with the STL law was not a “benefit of the bargain” when he
subscribed to WIRED magazine, Animal Legal Def. Fund v. Mendes, 72 Cal. Rptr.
3d 553, 560 (Cal. Ct. App. 2008).
The district court’s dismissal for lack of statutory standing is AFFIRMED.2
1
Even if California did recognize informational injury, King has failed to
sufficiently allege an informational injury. King’s mere allegation that Conde Nast
failed to provide contact information does not pertain to the STL’s primary
purpose. See Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1259-60 (9th Cir. 2010);
Boorstein, 165 Cal. Rptr. 3d at 674 (The STL’s purpose is to “provide consumers
with information on how their information is being shared by businesses.”).
2
King’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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