Antitrust Law Daily Wrap Up, PRIVACY—9th Cir.: Magazine subscribers lacked standing to assert Shine the Light claims, (Feb 19, 2014)

By Jody Coultas, J.D.

In three separate cases, magazine subscribers’ California Shine the Light and Unfair Competition Law (UCL) claims against magazine companies were properly dismissed for lack of statutory standing, the U.S. Court of Appeals in San Francisco has decided (King v. Conde Nast Publications; Miller v. Hearst Communications, Inc.; and Murray v. Time Inc., February 18, 2014, Per Curiam).

Section 1798.83(a) of the Shine the Light (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. Businesses must notify customer service employees, update website, or post physical notices at place of business in order to provide customers with the information necessary to make such a request. If a business 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, it may be excused from the requirement to respond to customer requests.

The district court properly held that the subscribers lacked standing, according to the court. A plaintiff must have suffered a statutory injury to have standing to pursue a cause of action under the STL. To plead a sufficient statutory injury, the subscribers must have made, or attempted to make, a disclosure request. Because the subscribers failed to allege that they submitted a request to the companies under the STL law, or that they would have, had accurate contact information been provided, the subscribers lacked standing.

The subscribers failed to allege an injury in fact under the UCL because California does not recognize informational injury, and the companies’ compliance with the STL law was not a “benefit of the bargain” when they subscribed to the magazines, according to the court.

The cases are Nos. 12-57209, 12-57231, and 12-17591.

Attorneys: Rafey S. Balabanian (Edelson LLC) for Brian King and Melissa Miller. Sean Reis (Reis Law Firm, A.P.C.) for Nicholas Murray. Michelle Doolin (Cooley LLP) for Conde Nast Publications, Hearst Communications, Inc., and Time Inc.

Companies: Time Inc.; Conde Nast Publications; Hearst Communications, Inc.

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