Stallone v. Farmers Group, Inc. et al, No. 2:2021cv01659 - Document 55 (D. Nev. 2022)

Court Description: ORDER Granting 32 Motion for Leave to File Document. ORDER Granting 42 Motion for Leave to File Document. ORDER Granting 49 Motion for Leave to File Document. ORDER Granting 52 Motion for Leave to File Excess Pages. ORDER Denying 21 Motion to Dismiss. IT IS FURTHER ORDERED that Plaintiff may file an amended complaint within twenty-one days of this order. Signed by Judge Gloria M. Navarro on 10/15/2022. (Copies have been distributed pursuant to the NEF - LOE)

Download PDF

Stallone v. Farmers Group, Inc. et al Doc. 55 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 1 of 27 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 6 7 8 RONALD STALLONE, on behalf of himself ) and all other persons similarly situated, ) ) Plaintiff, ) vs. ) ) FARMERS GROUP, INC., et al., ) ) Defendants. ) Case No.: 2:21-cv-01659-GMN-VCF ORDER 9 10 Pending before the Court is Defendants Farmers Group, Inc., Farmers Insurance 11 Exchange, 21st Century Insurance Company (collectively “Defendants’”) Motion to Dismiss, 12 (ECF No. 21). Plaintiff Ronald Stallone, individually and on behalf of all other similarly 13 situated (“Plaintiff”), filed a Response, (ECF No. 33), and Defendants filed a Reply, (ECF No. 14 35). 15 Also pending before the Court is the Motion for Leave to File Supplemental Authority, 16 (ECF No. 32), filed by Defendants. Plaintiff filed a Response, (ECF No. 34), and Defendants 17 filed a Reply, (ECF No. 36). Similarly pending before Court is the Second Motion for Leave to File Supplemental 18 19 Authority, (ECF No. 42), filed by Defendants. Plaintiff filed a Response, (ECF No. 47), and 20 Defendants filed a Reply, (ECF No. 48). 21 Further pending before the Court is the Motion for Leave to File Supplemental 22 Authority, (ECF No. 49), filed by Plaintiff. Defendants filed a Response, (ECF No. 49), and 23 Plaintiff filed a Reply, (ECF No. 51). 24 /// 25 /// Page 1 of 27 Dockets.Justia.com Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 2 of 27 Similarly pending before the Court is the Second Motion for Leave to File Supplemental 1 2 Authority, (ECF No. 52), filed by Plaintiff. Defendants filed a Response, (ECF No. 53), and 3 Plaintiff filed a Reply, (ECF No. 54). 1 For the reasons discussed below, the Court DENIES Defendants’ Motion to Dismiss. 4 5 Furthermore, the Court GRANTS Defendants’ Motion for Leave to File Supplemental 6 Authority, and Second Motion for Leave to File Supplemental Authority. Additionally, the 7 Court GRANTS Plaintiff’s Motion for Leave to File Supplemental Authority and Second 8 Motion for Leave to File Supplemental Authority. 9 I. BACKGROUND This case arises from a data breach of Defendants network between January 20, 2021 to 10 11 February 12, 2021, in which hackers downloaded the personally identifiable information 12 (“PII”) of Plaintiff and other similarly situated individuals (“Data Breach”).2 (Am. Compl. ¶ 4, 13 ECF No. 16). Specifically, hackers accessed Plaintiff’s driver’s license number and address. 14 (Id. ¶¶ 7, 21). Defendants operate a single unincorporated business enterprise selling insurance 15 under the service mark “Farmers Insurance Group of Companies.” (Id. ¶ 11). Defendants’ 16 privacy statement on their website states that Defendants “value [their customers] privacy” and 17 that their “policy is to protect the confidentiality of the individually identifiable information . . . 18 and to limit access to that information only to those with a need to know.” (Id. ¶ 2). Plaintiffs 19 allege that Defendants violated this promise by “readily provid[ing] Plaintiff’s and putative 20 21 The Court may grant leave to file supplemental authority “for good cause” See LR 7-2(g). “Good cause may exist when the proffered supplemental authority controls the outcome of the litigation, or when the proffered supplemental authority is precedential, or particularly persuasive or helpful.” Alps Prop. & Cas. Ins. Co. v. Kalicki Collier, LLP, 526 F. Supp. 3d 805, 812 (D. Nev. 2021). Because the supplemental authority both parties provide in their various Motions to File Supplemental Authority and Second Motions to File Supplemental Authority, (ECF Nos. 32, 42, 49, 52), include published and unpublished federal court cases that are relevant to the issues in this action, the supplemental authority is helpful in developing the Court’s analysis. 1 22 23 24 25 2 Pursuant to Rule 23 of the Fed. R. Civ. P., Plaintiff brings this action on behalf of himself and all persons in the state of New York whose PII was compromised as a result of the Data Breach. (Id. ¶ 75). Page 2 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 3 of 27 1 Class Members’ driver license numbers to literally anyone who entered a person’s name, 2 address and/or data of birth into their on-line quoting system.” (Id. ¶ 3) (emphasis in original). 3 Plaintiff alleges that this breach was made possible by “Defendants’ failure to properly 4 secure their instant quote system, allowing anyone with basic information to obtain drivers’ 5 license numbers and other sensitive data.” (Id.). Hackers were able to obtain Plaintiff’s PII 6 from Defendants’ online quoting system despite Plaintiff not being a customer of Defendants. 7 (Am. Compl. ¶¶ 7, 19). On April 22, 2021, two to three months after the Data Breach, 8 Defendants notified Plaintiff in a letter that his PII had been compromised. (Id. ¶ 23). 9 Defendants’ letter encouraged affected individuals to use a free identity theft protection service 10 they offered, and advised those affected to, “[i]n addition to enrolling in Credit Monitoring . . . 11 order your free credit report, place a fraud alert on your credit bureau file, place a security 12 freeze on your credit file and report suspicious activity[.]” (Id. ¶ 25). In May 2021, Plaintiff 13 received a letter stating his application for credit at Eddie Bauer was not approved despite never 14 applying for credit. (Id. ¶ 24). Plaintiff believes that this denied application was the result of 15 the disclosure of his driver’s license number. (Id. ¶ 58). 16 Plaintiff posits he and similarly situated class members now face a heightened long-term 17 risk of future harm, specifically harm posed by identity theft and fraud. (Id. ¶ 25, 58). Plaintiff 18 further argues that the dissemination of the PII at issue, namely his driver’s license number and 19 address, is significantly more valuable than the loss of other types of PII because driver’s 20 license numbers are an integral part of a person’s identity and are difficult to change. (Id. ¶¶ 21 32–34). With access to a driver’s license number, criminals can fraudulently apply for 22 unemployment benefits. (Id. ¶ 35). Moreover, Plaintiff asserts that the PII leaked in the breach 23 will likely be sold or disseminated on the dark web. (Id. ¶¶ 26–41). Plaintiff cites sources 24 which show that “personal information can be sold at a price ranging from $40 to $200, and 25 bank details have a price range of $50 to $200.” (Id. ¶ 31). Plaintiff also provides articles Page 3 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 4 of 27 1 written by several experts on the monetary value and significance of an individual’s driver’s 2 license number. (Id. ¶¶ 33–35). 3 Plaintiff contends that Defendants failed to reasonably maintain safety and security 4 measures, especially since insurance companies are frequently targeted by cyber attackers 5 because they work with sensitive data. (Id. ¶¶ 42–45). Plaintiff posits that the Data Breach 6 could have been prevented “[h]ad Defendants remedied the deficiencies in their data security 7 systems and adopted security measures recommended by experts in the [insurance] field and 8 industry . . . .” (Id. ¶ 64). Plaintiff, to mitigate the risk of harm posed by the Data Breach, 9 “review[ed] and monitor[ed] his accounts, enroll[ed] in the free credit monitoring offered, and 10 plac[ed] an alert on his credit with Experian.” (Id. ¶ 54). On September 8, 2021, Plaintiff, individually and on behalf of all others similarly 11 12 situated, filed his first Complaint. (Pl.’s Compl., ECF No. 1). On January 7, 2022, Plaintiff 13 filed the present Amended Complaint, alleging claims for: (1) violation of the Drivers’ Privacy 14 Protection Act (“DPPA”), 18 U.S.C. § 2724; (2) negligence; and (3) declaratory and injunctive 15 relief. (Am. Compl. ¶¶ 84–112). On February 8, 2022, Defendants filed the instant Motion to 16 Dismiss. (MTD, ECF No. 21). 17 II. 18 LEGAL STANDARD Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 19 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 20 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on 21 which it rests, and although a court must take all factual allegations as true, legal conclusions 22 couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 23 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements 24 of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain 25 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its Page 4 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 5 of 27 1 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A 2 claim has facial plausibility when the plaintiff pleads factual content that allows the court to 3 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 4 standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Generally, a district court may not consider any material beyond the pleadings in ruling 5 6 on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 7 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the 8 complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a 9 complaint and whose authenticity no party questions, but which are not physically attached to 10 the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.” Branch v. 11 Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take 12 judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 13 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion 14 to dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d). If the court grants a motion to dismiss for failure to state a claim, leave to amend should 15 16 be granted unless it is clear that the deficiencies of the complaint cannot be cured by 17 amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant 18 to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in 19 the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the 20 movant, repeated failure to cure deficiencies by amendments previously allowed undue 21 prejudice to the opposing party by virtue of allowance of the amendment, futility of the 22 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 23 III. DISCUSSION 24 By the instant motion, Defendants seek an order dismissing the above-titled action on 25 the grounds that (1) Plaintiff lacks Article III standing, and (2) that Plaintiff has failed to allege Page 5 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 6 of 27 1 facts sufficient to support any of his claims for relief. The Court first turns to the question of 2 standing. 3 Defendants argue that Plaintiff does not have standing before this Court because 4 “Plaintiff’s claim of potential future harm, based on the alleged exposure of his driver’s license 5 number and address, does not establish an injury in fact.” (MTD 12:2–5); see (Reply 7:6–17, 6 ECF No. 35). In rebuttal, Plaintiff argues that he has sufficiently alleged four concrete injuries 7 sufficient to confer standing, specifically: (1) an increased risk of identity theft; (2) diminished 8 value of his PII; (3) lost time and expenditures to mitigate the risk of future harm caused by the 9 Data Breach; and (4) additional harm caused by Defendants’ delay in notifying Plaintiff of the 10 11 Data Breach. (Resp. 5:20–25, 12:10–18, ECF No. 33). The Court evaluates challenges to Article III standing under Fed. R. Civ. P 12(b)(1). See 12 Maya v. Centex Corp., 658 F.3d 1060, 1097 (9th Cir. 2011) (writing that a motion to dismiss 13 for lack of standing is governed by Rule 12(b)(1)). Where, as here, “a defendant in its motion 14 to dismiss under Federal Rule of Civil Procedure 12(b)(1) asserts that the allegations in the 15 complaint are insufficient to establish subject matter jurisdiction as a matter of law (to be 16 distinguished from a claim that the allegations on which jurisdiction depends are not true as a 17 matter of fact), we take the allegations in the plaintiff’s complaint as true.” In re Zappos.com, 18 Inc. (Zappos), 888 F.3d 1020, 1023 n.2 (9th Cir. 2018) (quoting Whisnant v. United States, 400 19 F.3d 1177, 1179 (9th Cir. 2005). 20 A. STANDING 21 “Standing under Article III of the Constitution requires that an injury be concrete, 22 particularized, and actual or imminent; fairly traceable to the challenged action; and redressable 23 by a favorable ruling. Mosanto Co v. Geerton Seed Farms, 561 U.S. 139, 149 (2010). Plaintiffs 24 must prove each element with the same manner and degree of evidence required at each stage 25 of litigation. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “At the pleading stage, Page 6 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 7 of 27 1 ‘general factual allegations of injury resulting from defendant’s conduct may suffice.” Mecinas 2 v. Hobbs, 30 F.4th 890, 897 (9th Cir. 2022) (quoting Lujan, 504 U.S. at 561). 3 In a class action, standing exists where at least one named plaintiff meets these 4 requirements. Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 865 (9th Cir. 2014). 5 To demonstrate standing, the “named plaintiffs who represent a class must allege and show 6 they personally have been injured, not that injury has been suffered by other, unidentified 7 members of the class to which they belong and which they purport to represent.” Lewis v. 8 Casey, 518 U.S. 343, 347 (1996) (internal quotation marks omitted). At least one named 9 plaintiff must have standing with respect to each claim that the class representatives seek to 10 11 bring. In re Ditropan XL Antitrust Litig., 529 F. Supp. 2d 1098, 1107 (N.D. Cal. 2007). In the context of requests for injunctive relief, the standing inquiry requires plaintiffs to 12 “demonstrate that [they have] suffered or [are] threatened with a ‘concrete and particularized 13 harm,’ coupled with a ‘sufficient likelihood that [they] will again be wronged in a similar 14 way.’” Bates v. Untied States Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting 15 Lujan, 504 U.S. at 560). The latter inquiry turns on whether the plaintiff has a “real and 16 immediate threat of repeated injury.” Id. The threat of future injury cannot be “conjectural or 17 hypothetical” but must be “certainly impending to” constitute an injury in fact for injunctive 18 relief purposes. Zappos, 888 F.3d at 1026. 19 20 1. Injury-in-Fact As previously mentioned, Plaintiff argues that he has sufficiently alleged four concrete 21 injuries sufficient to confer standing, specifically: (1) an increased risk of identity theft; (2) 22 diminished value of his PII; (3) lost time and expenditures to mitigate the risk of future harm 23 caused by the Data Breach; and (4) additional harm caused by Defendants’ delay in notifying 24 Plaintiff of the Data Breach. (Resp. 5:20–25, 12:10–18). The Court will first examine whether 25 the type of PII released in the data breach exposed Plaintiff to an imminent risk of harm. Page 7 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 8 of 27 1 2 a. Cognizable Threat of Future Harm Defendants argue that under the relevant caselaw, the dissemination of an individual’s 3 driver’s number and address “is not the type of particularly sensitive personal information that 4 creates a credible threat of fraud or identity theft.” (MTD 14:3–7); see also (Reply 7:6–9:2). 5 Plaintiff, in rebuttal, asserts that where “a plaintiff alleges facts supporting that the breached 6 data[,]” irrespective of the type of data, “can be used to commit identity theft, it is sufficiently 7 sensitive that a targeted hack to obtain the data creates a ‘substantial’ risk of identity theft 8 sufficient for Article III injury-in-fact.” (Resp. 7:1–6). 9 Both parties rely on Krotter v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010), and In re 10 Zappos.com, Inc., 888 F.3d 1020 (9th Cir. 2018)—the two leading data breaches in the Ninth 11 Circuit that concern standing based on an alleged risk of future identity theft. The hackers in 12 Krottner obtained unencrypted names, addresses, and social security numbers, and the Zappos 13 hackers obtained names, account numbers, passwords, email addresses, billing and shipping 14 addresses, telephone numbers, full credit card numbers, and unspecified credit and debit card 15 information. See Zappos, 888 F.3d at 1023; Krottner, 628 F.3d at 1140. The Ninth Circuit in 16 Zappos expressly held that “[a] plaintiff threatened with future injury has standing to sue if the 17 threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” 18 888 F.3d at 1024 (citation omitted). Based on “the sensitivity of the personal information, 19 combined with its theft,” plaintiffs in those cases “adequately alleged an injury in fact 20 supporting standing.” Zappos, 88 F.3d at 1027. The Zappos court also concluded that that the 21 plaintiffs sufficiently alleged standing where their credit card information had been 22 compromised during a data breach, even though there was not indication it had actually been 23 misused. Zappos, 888 F.3d at 1027. 24 25 Defendant relies on a line of district court cases which have found that the dissemination of an individual’s driver’s license number and address is not sensitive enough to constitute an Page 8 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 9 of 27 1 immediate risk of harm. See Greenstein v Noble Reciprocal Exch., 585 F. Supp. 3d 1220, 1227 2 (N.D. Cal. 2022) (finding that plaintiffs did not establish an imminent risk of harm “because 3 driver’s license numbers do not provide hackers with a clear ability to commit fraud”); In re 4 Uber Techs., Inc., Data Sec. Breach Litig., CV 18-2970, 2019 WL 6522843, at *4 (C.D. Cal. 5 Aug. 19, 2019) (“Plaintiff fails to explain how gaining access to one's basic contact information 6 and driver's license number creates a credible threat of fraud or identity theft.”); Antman v. 7 Uber Techs., Inc., No. 3:15-cv-01175, 2015 WL 6123054, at *11 (N.D. Cal. Oct. 19, 2015) 8 (Antman I) (“[The plaintiff's] allegations are not sufficient because his complaint alleges only 9 the theft of names and driver's licenses. Without a hack of information such as social security 10 numbers, account numbers, or credit card numbers, there is no obvious, credible risk of identity 11 theft that risks real, immediate injury.”); see also Antman v. Uber Techs., Inc., Case No. 15-cv- 12 01175-LB, 2018 WL 2151231, at *10 (N.D. Cal. May 10, 2018) (Antman II) (concluding that 13 the theft of Uber drivers’ names and driver's license numbers, combined with bank account and 14 routing numbers, “does not change the court's conclusion that the disclosed information does 15 not plausibly amount to a credible threat of identity theft that risks real, immediate injury”). 16 The Court considers these cases and does not find them persuasive in light of the analysis 17 herein. 18 The Court finds that “the rightful injury-in-fact determination is not to look at the 19 minutia of what information has been taken — such as credit card information — or social 20 security numbers — but to specifically determine whether the data taken ‘gave hackers the 21 means to commit fraud or identity theft.’” Bass v. Facebook, Inc., 394 F. Supp. 3d 1024, 1034 22 (N.D. Cal. 2019) (quoting Zappos, 888 F.3d at 1027–29)). “The information taken . . . need not 23 be sensitive to weaponize hackers in their quest to commit further fraud or identity theft.” Bass, 24 394 F. Supp. 3d at 1034. “Imminent injury in fact can be established through information 25 Page 9 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 10 of 27 1 similar in function to [a] social security number[ ],” which “derives its value in that it is 2 immutable.” Id. 3 As Plaintiff points out, the information compromised in the Data Breach, namely his 4 driver’s license number and address, is “difficult and highly problematic” to change. (Am. 5 Compl. ¶ 32). The stolen data here is sufficiently similar to a social security number because it 6 derives its value in large part from its immutability. Bass, 394 F. Supp. 3d at 1034. Moreover, 7 Plaintiff has alleged that the Data Breach was part of a targeted campaign in which hackers 8 entered additional PII they already obtained into Defendants online quoting platform to obtain 9 Plaintiff’s driver’s license number and address. (Resp. 6:1–8); (Am. Compl. ¶ 19). Thus, 10 Plaintiff argues that the Data Breach was part of a concerted campaign by hackers to “pharm” 11 and accumulate the PII of Plaintiff and other victims. (Resp. 7:16–21); (Am. Compl. ¶ 19). 12 Plaintiff cites to multiple experts for the proposition that the PII stolen can, and will likely, be 13 used to fraudulently apply for unemployment benefits, cultivate a fraudulent synthetic identity, 14 or gain access to victim’s bank accounts and other personal information. (Am. Compl. ¶¶ 32– 15 34). Thus, the PII stolen here will “provide further ammo” for hackers to commit identity 16 fraud or theft. Bass, 395 F. Supp. 3d at 1034. 17 Hackers targeted Defendants’ online quoting platform “with the goal of taking [PII] on a 18 mass scale.” Huyn v. Quora, Inc., No. 18-cv-07597, 2019 WL 11502875, at *5 (N.D. Cal. Dec. 19 19, 2019). “It is not too great a leap to assume, therefore, that their goal in targeting and taking 20 this information was to commit further fraud and identity theft.” Bass, 394 F. Supp. 3d at 1035. 21 As the United States Court of Appeals for the Seventh Circuit acknowledged, “[w]hy else 22 would hackers break into a store's database and steal consumers' private information? 23 Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume 24 those consumers' identities.” Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 693 (7th Cir. 25 2015); see also Galaria v. Nationwide Mut. Ins. Co., 663 F App’x 384, 388 (6th Cir. 2016). Page 10 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 11 of 27 1 (“Where a data breach targets personal information, a reasonable inference can be drawn that 2 the hackers will use the victims’ data for the fraudulent purposes alleged in Plaintiffs’ 3 complaints.”). Accordingly, Plaintiff has sufficiently shown that the hacker’s intent was not 4 benign, and that the nature of the PII stolen creates a substantial risk of future harm. See Pygin 5 v. Bombas, LLC, No. 20-cv-04412, 2021 WL 6496777, at *4 (N.D. Cal. Nov. 29, 2021) 6 (finding that plaintiff had standing where the facts alleged were “sufficient to reasonably infer 7 that the hackers’ intent was not benign, and thus, that the Data Breach created a substantial risk 8 of harm” to plaintiff despite plaintiff not showing that his personal information was misused); 9 see also Huyn v. Quora, Inc., No. 18-cv-07597, 2019 WL 11502875, at *5 (N.D. Cal. Dec. 19, 10 2019) (“Between the obvious goal of taking personal information and the nature and amount of 11 information taken, Plaintiffs have plausibly shown that they are at risk of further fraud and 12 identity theft.”). Additionally, the Court is persuaded that Plaintiff has sufficiently alleged a concrete 13 14 injury was suffered due to the failed Eddie Bauer credit application. (Am. Compl ¶ 58). 15 Information was stolen, has already surfaced on the Internet, and been misused by others. 16 Given this, the danger that Plaintiffs’ data will be subject to further misuse can be described as 17 “certainly impending.” In re Adobe Sys. Privacy Lit. 66 F. Supp. 3d 1197, 1215 (N.D. Cal. 18 2014) (noting that a threatened injury would only be more imminent if information had already 19 been misused). To require Plaintiffs to wait until they actually suffer identity theft or credit 20 card fraud in order to have standing would run counter to the well-established principle that 21 harm need not have already occurred or be “literally certain” in order to constitute injury-in- 22 fact. Id.; see also Clapper, 568 U.S. 398, 414 n.5 (2013). Accordingly, the Court concludes 23 /// 24 25 Page 11 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 12 of 27 1 that Plaintiff’s allegations of an increased risk of fraud and identity theft are sufficient to 2 establish a credible risk of immediate harm. 3 b. Diminished Value of PII 3 4 Defendants argue that Plaintiff failed to “allege that his [PII] lost value or that he 5 intended to sell his address or driver’s license number.” (Reply 10:21–23). In rebuttal, Plaintiff 6 contends that the “theft of his driver’s license number threatens his license’s utility and worth, 7 as a hacker or identity thief of his driver’s license numbers can gain access to vehicle 8 registration and insurance policies, as well as access to files kept in doctor’s offices and 9 government agencies.” (Id. 11:17–19). 10 “Diminution in value of personal information can be a viable theory of damages.” 11 Pruchnicki v. Envision Healthcare Corp., 439 F. Supp. 3d 1226, 1234 (D. Nev. 2020), affirmed 12 845 Fed. App’x 613 (9th Cir. 2021). Defendant contends that to show injury in fact under this 13 theory, Plaintiff “must establish both the existence of a market for [his] personal information 14 and an impairment of [his] ability to participate in that market.” Svenson v. Google Inc., No. 15 13-cv-04080, 2016 WL 8943301, at *8 (N.D. Cal. Dec. 21, 2016). Under this formulation of 16 test, a plaintiff must prove that they intended to sell their own PII. Id.; Pruchicki, 439 F. Supp. 17 at 1235 (examining whether there was specific allegations that plaintiff was “unable to sell” her 18 own PII in assessing any diminution of the value of the PII). These pleading requirements, that 19 a plaintiff must establish both the existence of a market for their PII and an impairment of their 20 21 3 22 23 24 25 Plaintiff additionally argues that Defendants tacitly admitted that Plaintiff faces an imminent risk of identity theft by offering “identity theft protection and enourag[ing] Plaintiff to use it,” and advising him, in addition to enrolling in credit monitoring, to “order [a] free credit report, place a fraud alert on [his] credit bureau file, [and] place a security free on [his] file and report suspicious activity.” (Am. Compl. ¶ 25). Likewise, in Zappos, the Ninth Circuit considered as evidence of risk of harm the fact that Zappos effectively acknowledged this risk of fraud or identity theft by urging customers to change their passwords. 888 F.3d 1020 (9th Cir. 2018). The Court agrees that Defendant’s acknowledgement is a factor to be considered in evaluating the risk of imminent harm. However, this Court is not convinced that this factor alone is dispositive. Page 12 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 13 of 27 1 ability to participate in that market is not supported by Ninth Circuit precedent, and other 2 district courts in this Circuit have rejected them. See In re: Anthem, Inc. Data Breach Litig., 3 No. 15-md-02617, 2016 WL 3029783, at *15 (N.D. Cal. May 27, 2016) (“These statements [in 4 the case law] appear to require a plaintiff to allege that there was either an economic market for 5 their PII or that it would be harder to sell their own PII, not both.”) (emphasis in original); 6 Svenson¸ 2015 WL 1503429, at *5 (“The Ninth Circuit’s holding does not require [this] type of 7 explication . . .”) (emphasis in original); attack”); In re Zappos.com, Inc., 108 F. Supp. 3d 949, 8 954 rev’d on other grounds by In re Zappos.com, Inc., 888 F.3d 1020 (9th Cir. 2018) (rejecting 9 plaintiffs’ claim that the Zappos security deprived them of the “substantial value” of their 10 personal information where they did not allege they attempted to sell their information and 11 were rebuffed because of a lower price-point attributable to the security breach). It is undisputed that Plaintiff sufficiently alleged a market for his PII exists on the “dark 12 13 web.” (Am. Compl. ¶¶ 28–34); (Resp. 10:20–23). Defendants’ sole argument is that Plaintiff 14 failed to “allege that his information loss value or that he intended to sell his address or driver’s 15 license number.” (Resp. 10:20–23). However, as explained above, the Court finds that Plaintiff 16 does not have to show that he intended to sell his PII to allege a diminution in value. 17 Therefore, the Court finds that Plaintiff has sufficiently alleged a diminution in the value of his 18 PII. 19 20 c. Lost Time & Mitigation Expenditures Defendants argue that Plaintiff’s lost time and mitigation expenses do not constitute an 21 actual injury because Plaintiff has not shown an imminent threat of harm. (MTD 16:3–19). 22 Plaintiff, in response, asserts that because he has shown an imminent threat of harm, his out-of- 23 pocket expenses constitute a cognizable injury-in-fact. (Reply 11:27–12:7). 24 25 In Pruchnicki v. Envision Healthcare Corp., the Court held that “tangible, out-of-pocket expenses are required in order for lost time spent monitoring credit to be cognizable as Page 13 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 14 of 27 1 damages.” 439 F. Supp. 3d 1226, 1233 (D. Nev. 2020), affirmed 845 Fed. App’x 613 (9th Cir. 2 2021). While courts have found that credit monitoring may be “compensable where evidence 3 shows that the need for future monitoring is a reasonably certain consequence of the 4 defendant’s breach of duty . . . the monitoring must be ‘reasonable and necessary.’” Greenstein, 5 585 F. Supp. 3d at 1229–30 (quoting Corona v. Sony Pictures Entm’t, Inc., No. 14-cv-09600, 6 2015 WL 3916744, at *4 (C.D. Cal. June 15, 2015). Thus, courts within the Ninth Circuit have 7 found that out-of-pocket expenses are only warranted when there is an imminent risk of identity 8 theft. See Stasi v. Immediate Health Grp. Corp., No. 19-cv-2353, 2020 WL 2126317, at *9 9 (S.D. Cal. May 5, 2020) (“Plaintiffs cite no case in which the expenditure of time or money to 10 prevent future identity theft was sufficient in and of itself to support standing without a finding 11 that the threat of identity theft was imminent. Courts addressing the issue have come to the 12 opposite conclusion.”); Antman II, 2018 WL 2151231, at *10 (“Given this holding [that the 13 threat of identity theft was not imminent] the mitigation expenses do not qualify as injury 14 because the risk of identity theft must be real before mitigation can establish injury in fact.”); 15 Antman I, 2015 WL 6123054, at *11 (“[M]itigation expenses do not qualify as injury; the risk 16 of identity theft must first be real and imminent, and not speculative, before mitigation costs 17 establish injury in fact.”). “Accordingly, for standing purposes, the risk of future identity theft, 18 and the related mitigation costs, are injuries that rise and fall together.” Stasi, 2020 WL 19 2126317, at *9. 20 For the reasons set forth above, the Court finds that Plaintiff has adequately alleged an 21 imminent risk of identity theft. Nevertheless, the Court is not persuaded that Plaintiff has 22 alleged a cognizable injury. Plaintiff contends that following the Data Breach, he “made 23 reasonable efforts to mitigate [the] further impact of the Data Breach, including reviewing and 24 monitoring his accounts, enrolling in the free credit monitoring offered, and placing an alert on 25 his credit with Experian.” (Am. Compl. ¶ 54). Thus, Plaintiff does not assert that he spent Page 14 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 15 of 27 1 additional out-of-pocket mitigation expenses. See, e.g. Castillo v. Seagate Tech., LLC, No. 16- 2 cv-01958, 2016 WL 9280242 at *4 (N.D. Cal. Sept. 14, 2016) (finding cognizable injury where 3 some plaintiffs bought a subscription to an identity protection service “because they wanted 4 greater protection than that offered” by the defendant); Huynh v. Quora, Inc., 508 F. Supp. 3d 5 6333, 650 (N.D. Cal. 2020) (same); In re Adobe, 66 F. Supp. 3d at 1217 (same). Instead, 6 Plaintiff merely enrolled in the free credit monitoring service offered by Defendants. (Am. 7 Compl. ¶ 54). Here, the Court declines to recognize enrollment in a free service as an out-of- 8 pocket expense. According to the precedent this Court must follow, Plaintiff’s lost time, 9 without an accompanying expenditure, is insufficient to constitute an injury-in-fact. 10 d. Harm Caused by Defendants’ Delay in Notifying Plaintiff Defendant contends that where “there is no[] imminent threat of harm,” mere allegations 11 12 of delay are insufficient to establish an injury-in-fact. (Reply 10:3–14).4 Additionally, 13 Defendant argues that Plaintiff failed to articulate how any delay caused harm independent 14 from that caused by the Data Breach itself. (MTD 16:21–17:11). Plaintiff, in rebuttal, asserts 15 that “[w]here, as here, the substantial risk of fraud is established as injury-in-fact, a delay of 16 over two months left Plaintiff and Class Members at an incrementally increased risk because of 17 their inability to start take mitigative steps prior to notification.” (Resp. 12:10-18). To allege a “cognizable injury” arising from delay, a plaintiff must allege “incremental 18 19 harm suffered as a result of the alleged delay in notification,” not merely the data breach itself. 20 See Dugas v. Starwood Hotels & Resorts Worldwide, Inc., No. 16-00014, 2016 WL 6523428, at 21 *7 (S.D. Cal. Nov. 3, 2016); see also In re Sony Gaming Networks, 996 F. Supp. 2d 942, 1010 22 (S.D. Cal. 2014) (“[A] plaintiff must allege actual damages flowing from the unreasonably 23 delay (and not from the intrusion itself) in order to recover actual damages.”). 24 25 4 For the reasons set forth above, the Court finds that Plaintiff has alleged an imminent threat of harm. Therefore, the Court will solely focus on whether Plaintiff adequately alleged an incremental harm caused by delay. Page 15 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 16 of 27 1 As previously mentioned, Defendant argues that Plaintiff does not allege damages 2 flowing from its months-long disclosure delay. (MTD 16:21–17:11). However, Courts within 3 the Ninth Circuit have found that plaintiffs adequately pled incremental harm when plaintiffs 4 plausibly alleged that they could not take mitigation steps due to defendants delay in notifying 5 them of a data breach. See In re Yahoo! Inc. Customer Data Sec. Breach Litig., No. 16-02752, 6 2017 WL 3727318 (N.D. Cal. Aug. 30, 2017) (finding incremental harm was adequately pled in 7 a data breach case when plaintiffs plausibly alleged, they could not take mitigation steps based 8 upon delay); In re Solara Med. Supplies, LLC Customer Data Sec. Breach Litig., No. 3:19-cv- 9 2284, 2020 WL 2214152, at *8 (S.D. Cal. May 7, 2020) (same). At this stage in the pleading, 10 the Court assumes as true that had Plaintiff been aware of the Data Breaches a month or two 11 earlier, Plaintiff would have taken earlier measures to mitigate any potential harm suffered 12 from the Data Breach. Defendants’ argument is better suited for a motion for summary 13 judgment when the record is more fully developed. Therefore, the Court finds that Plaintiff has 14 plausibly alleged incremental damages arising from Defendants’ delay in notifying Plaintiff of 15 the Data Breach. 16 17 2. Traceable Injury Defendant argues that Plaintiff’s alleged injuries, including the failed Eddie Bauer 18 application, are not traceable to the Data Breach. (Reply 8:13–9:21). Plaintiff argues that he 19 has shown a traceable injury because there is a logical connection between the Data Breach and 20 the harm suffered by Plaintiff. (Resp. 12:19–28). Specifically, Plaintiff contends that he has 21 sufficiently pled that the Data Breach led to him being exposed to a substantial risk of identity 22 theft, out-of-pocket monitoring costs, lost time, and inchoate harm. (Id. 13:1–12). 23 Here, Plaintiff sufficiently allege that the risk of future “fairly traceable” to the conduct 24 being challenged”—Defendants’ failure to prevent the breach. Lujan, 504 U.S. at 560–61. As 25 the Ninth Circuit articulated in Zappos, “[t]hat hackers might have stolen [p]laintiffs’ PII in Page 16 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 17 of 27 1 unrelated breaches, and that [p]lainitffs might suffer identity theft or fraud caused by the data 2 stolen in those other breaches (rather than the data stolen from Zappos) is less about standing 3 and more about the merits of causation and damages.” 888 F.3d at 1029. The Zappos court 4 further explained “that ‘some other [breach] might also have caused the plaintiffs' private 5 information to be exposed does nothing to negate the plaintiffs' standing to sue’ for the breach 6 in question.” Id. (quoting Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688, 696 (7th Cir. 7 2015))). 8 Here, the alleged harms are fairly traceable to Defendants because Defendants notified 9 Plaintiff in a letter that he was subject to the Data Breach. (Am. Compl. ¶¶ 23–25); See Huynh 10 v. Quora, Inc., No. 18-cv-07597, 2019 WL 11502875, at *4 (N.D. Cal. Dec. 19, 2019) (“These 11 alleged are fairly traceable to Quora because Quora notified each of the Plaintiffs that they may 12 have been subject of the 2018 Data Breach.”). “A reasonable inference can therefore be drawn 13 which traces the plausibly alleged harms to the purported mishandling of [Plaintiff’s] personal 14 information through the Data Breach.” Bass, 394 F. Supp. 3d at 1033. Moreover, as the Ninth 15 Circuit explained, the possibility that some other breach is responsible for causing Plaintiff’s 16 PII to be exposed, and correspondingly caused the failed Eddie Bauer application, is “less about 17 standing and more about the merits of causation and damages.” Zappos, 888 F.3d at 1029. 18 Because the Court assumes, at the pleading stage, that Plaintiff will prevail on the merit of his 19 claim, the Court concludes that Defendants’ failure to secure Plaintiff’s PII is sufficiently 20 traceable to Plaintiff’s alleged injuries. 21 22 3. Redressability Defendants advance two arguments for why Plaintiff lacks standing to seek injunctive 23 and declaratory relief related to requiring Defendants to enhance their security measures. First, 24 Defendants contend that because Plaintiff’s PII is leaked no subsequent action taken by 25 Defendants can restore Plaintiff’s PII to its pre-Data Breach state. (MTD 18:9–19:8); (Reply Page 17 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 18 of 27 1 11:19–12:7). Second, Defendants argue that Plaintiff cannot show that there is an imminent 2 risk of another data breach. (MTD 18:9–19:8); (Reply 11:19–12:7). In rebuttal, Plaintiff asserts 3 that he has sufficiently shown that his injuries, namely the substantial risk of identity theft, loss 4 of value of PII, and expenditures mitigating the effects of the Data Breach, are redressable 5 through money damages. (Resp. 13:14–14:5).5 Additionally, Plaintiff argues that injunctive 6 relief is necessary because it redresses Plaintiff’s risk of future harm by preventing ongoing and 7 future violations before the violation occurs. (Id. 14:5–15:2). “[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be 8 9 redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (internal quotations and citations 10 omitted). In TransUnion LLC v. Ramirez, the Supreme Court explained that “a person exposed 11 to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from 12 occurring, at least so long as the risk of harm is sufficiently imminent and substantial.” 141 S. 13 Ct. 2190, 2210 (2021) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013); see 14 also Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (2007) (standing inquiry for 15 injunctive relief requires plaintiffs to “demonstrate that [they have] suffered or [are] threatened 16 with a ‘concrete and particularized’ legal harm, coupled with a ‘sufficient likelihood that [they] 17 will again be wronged in a similar way’”). For the reasons set forth above, the Court finds that Plaintiff has adequately alleged a 18 19 real and immediate threat of repeated injury from Defendants. Here, hackers were able to 20 obtain Plaintiff’s PII from Defendants’ online quoting system despite Plaintiff not being a 21 customer of Defendants. (Am. Compl. ¶¶ 7, 19). Plaintiff argues that without injunctive relief 22 23 24 25 5 The Court agrees with Plaintiff that his alleged injuries are redressable from relief that could be obtained from this litigation. The Ninth Circuit articulated in Zappos that plaintiffs injury from the risk of identity theft was redressable because if plaintiffs succeeded on the merits, “any proven injuries could be compensated through damages.” 888 F.3d at 1030. Accordingly, all of Plaintiff’s alleged injuries could be remedied by money damages. Id. Page 18 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 19 of 27 1 requiring Defendants to remedy the deficiencies in their security measures, Plaintiff’s PII could 2 be “obtained again in the same unauthorized manner.” (Resp. 14:22–25). Plaintiff therefore 3 faces a “real and immediate threat” of further disclosure of his PII, which remains in the hands 4 of Defendants. See In re Ambry Genetics Data Breach Litig., 567 F. Supp. 3d 1130, 1141 5 (C.D. Cal. 2021) (writing that plaintiff had standing to pursue injunctive relief where plaintiff 6 asserted that requiring defendants to implement and maintain reasonable security measures was 7 necessary to prevent future data breaches); In re Yahoo! Inc., 2017 WL 3727318, at *31 8 (finding that plaintiffs had standing to pursue injunctive relief to mitigate the threat of future 9 data breaches when defendants remained in possession of plaintiffs PII); In re Adobe, 66 F. 10 Supp. 3d at 1223 (concluding that plaintiff had standing to pursue a declaratory judgment to 11 “prevent future harm from ongoing and future violations before the harm occurs”); Leonard v. 12 McMemamins, No. 2:22-cv-00094, 2022 WL 4017674, at **5–6 (W.D. Wash. Sept. 2, 2022) 13 (same). Accordingly, at this stage of the litigation, Plaintiff has adequately alleged standing to 14 seek injunctive and declaratory relief. 15 For the forgoing reasons, the Court finds that Plaintiff has established standing to pursue 16 his claim. The Court will now examine whether Plaintiff has stated a cognizable DPPA and 17 negligence claim as a matter of law. 18 B. DPPA 19 Defendants argue that Plaintiff failed to allege facts sufficient to satisfy the three 20 elements of a DPPA claim. (MTD 19:10–18). In response, Plaintiff posits that he has alleged 21 sufficient facts to state a plausible DPPA claim at this stage in the pleading. (Resp. 16:19–26). 22 In enacting the DPPA, Congress was motivated by its “[c]oncern[] that personal 23 information collected by States in the licensing of motor vehicle drivers was being released — 24 even sold — with resulting loss of privacy for many persons.” Maracich v. Spears, 570 U.S. 25 48, 51–52 (2013) (citing 18 U.S.C. §§ 2721–2725). Consequently, “[t]he DPPA regulates the Page 19 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 20 of 27 1 disclosure of personal information contained in the records of state motor vehicle departments.” 2 Id. at 52. To prevail on a DPPA claim, a plaintiff must prove that: (1) defendant knowingly 3 obtained or disclosed his personal information; (2) from a motor vehicle record; (3) for a 4 nonpermissible use. 18 U.S.C. § 2724; see also Andrews v. Sirius XM Radio Inc., 932 F.3d 5 1253, 1257 (9th Cir. 2019). The Court will first examine whether Defendants “knowingly” 6 disclosed Plaintiff’s PII. 7 8 9 1. Knowingly Defendants argue that there was no knowing disclosure of Plaintiff’s PIII because the instant quote feature was abused by third parties, and not through any voluntary action taken by 10 Defendants. (MTD 20:15–21:4). Plaintiff, in response, contends that Defendants knowingly 11 disclosed Plaintiff’s PIII by configuring an online quoting system which allowed any member 12 of the public to fill in information and receive a quote displaying an individual’s driver’s 13 license number. (Resp. 17:20–19:15). 14 A disclosure of PII constitutes a violation of the DPPA only if that disclosure was a 15 “knowing disclosure.” 18 U.S.C. § 2724(a). A “knowing disclosure” is a disclosure made 16 voluntarily, not necessarily one made with “knowledge of illegality or potential consequences.” 17 Senne v. Vill. of Palatine, 695 F.3d 597, 603 (7th Cir. 2012) (en banc); see In re USAA Data 18 Security Litig., No. 21-cv-5813, 2022 WL 3448527, at *7 (S.D.N.Y. Aug, 12, 2022) (applying 19 the definition of “knowing disclosure” used by the Seventh Circuit in Senne). 20 Recently, the United States District Court for the Southern District of New York in In re 21 USAA Data Security Litig. found that plaintiffs plausibly alleged that defendant knowingly 22 disclosed their PII under circumstances like the instant action. No. 21-cv-5813, 2022 WL 23 334852 (S.D.N.Y. Aug. 12, 2022). In re USAA involved a data breach of defendant USAA’s 24 online quoting platform. Id. at *1. To receive a car insurance quote, an individual only had to 25 provide their name, address, and date of birth. Id. at *1. After inputting that information, a Page 20 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 21 of 27 1 USAA member would receive an online quote drawn from the relevant state’s department of 2 motor vehicles, including the member’s driver’s license number. Id. at *1. Hackers targeted 3 USAA’s online quoting platform and stole plaintiffs’ driver’s license numbers from the system. 4 Id. at *2. 5 The In re USAA court found that Plaintiffs adequately plead a claim under the DPPA. 6 Specifically, the In re USAA court found that “USAA’s voluntary decision to automatically pre- 7 fill its quote forms with driver’s license numbers constitutes a ‘knowing disclosure’ of personal 8 information.” Id. at *6 (citing 18 U.S.C. § 2724(a). As in In re USAA, the Court finds that 9 Defendants’ made a voluntary decision to automatically pre-populate its online quote forms 10 with individuals driver’s license numbers upon receiving minimal personal information. 11 Although Defendants were not necessarily aware that this practice would result in the instant 12 Data Breach, the Court finds that Defendants’ decision to configure the online quoting platform 13 was a “knowing disclosure” of PII. 14 15 2. Motor Vehicle Record Plaintiff argues he has plausibly alleged that his PII is derived from a motor vehicle 16 record. (Resp. 19:17). Defendants, in rebuttal, argue that Plaintiff’s Complaint alleges that his 17 exposed PII came from both motor vehicle records and records outside the purview of the 18 DPPA. (MTD 21:15–26). Therefore, Defendants contend that Plaintiff’s allegations are 19 insufficient to show a plausible DPPA claim. 20 In order to survive a motion to dismiss, a complaint must allege “sufficient factual 21 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 22 U.S. at 678 (internal quotation marks omitted). Here, Plaintiff alleges that his PII originated 23 from motor vehicle records, among other sources. (Am. Compl. ¶¶ 20, 86, 92). Accepting 24 Plaintiff’s allegations as true, Plaintiff has plausibly alleged that his PII originated from motor 25 Page 21 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 22 of 27 1 vehicle records. Defendants’ argument is better suited for a motion for summary judgment 2 when the record is more fully developed. 3. Permissible Use 3 Defendants argue that even assuming there was a disclosure of PII, any disclosure would 4 5 have been for a permissible use under the DPPA. (MTD 22:1–3); (Reply 15:17–22). 6 Specifically, Defendants contend that the DPPA permits disclosure for insurance rating or 7 underwriting. (MTD 22:12–26); (Reply 15:17–22). Plaintiff, in rebuttal, contends that 8 Defendants cannot maintain that they utilized his PII for insurance rating or underwriting, when 9 Plaintiff neither sought an insurance quote from Defendants nor has he ever been a customer of 10 Defendants. (Resp. 20:21–21:3). In Marachich v. Spears, the Supreme Court spent considerable time discussing the 11 12 DPPA as a whole, including its exceptions. See generally 570 U.S. 48, 65–69 (2013). The 13 Supreme Court advised that the DPPA was to be read narrowly. Id. at 60. Specifically, the 14 Supreme Court articulated that although “the DPPA’s 14 exceptions permit disclosure of 15 personal information in a range of circumstances,” these exceptions “ought not to operate to the 16 farthest reach of their linguistic possibilities if that result would contravene the statutory 17 design.” Id. Prior federal circuit court decisions reached similar conclusions. See, e.g., Senne, 18 695 F.3d at 603 (“The statute then authorizes specific disclosures — each of which . . . has a 19 limited object and a limited class of recipients.”) (second emphasis added); Thomas v. George, 20 Hartz, Lundeen, Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107, 1114 (11th Cir. 21 2008) (citing subsection (b)(2) in holding that certain “§ 2721(b) enumerations point to a 22 particularized purpose”) (emphasis added). Here, the Court finds that Defendants’ 23 interpretation of the applicable DPPA exemption would contravene the statutory design of the 24 DPPA. 25 /// Page 22 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 23 of 27 1 The DPPA states that information may be disclosed “[f]or use by an insurer or insurance 2 support organization, or by a self-insured entity, or its agents, employees, or contractors, in 3 connection with claims investigation activities, antifraud activities, rating or underwriting.” 18 4 U.S.C. § 2721(b)(6). Defendants claim that under this exemption, any disclosure of PII through 5 its online quoting platform was pursuant to insurance rating or underwriting. (MTD 22:3–26); 6 (Reply 15:16–16:2). Defendants’ interpretation takes an expansive view of this exemption. It 7 vests Defendants and other car insurance providers with the absolute discretion to disseminate 8 driver’s license numbers on a public forum because it may ultimately facilitate insurance 9 underwriting or rating. This interpretation is difficult to reconcile with the facts of the instant 10 case. Here, hackers were able to obtain Plaintiff’s PII from Defendants’ online quoting system 11 despite Plaintiff not being a customer of Defendants. (Am. Compl. ¶¶ 7, 19). The DPPA 12 “contains no language that would excuse an impermissible [disclosure] merely because it was 13 executed in conjunction with a permissible purpose.” Pichler v. UNITE, 542 F.3d 380, 395 (3d 14 Cir. 2008). Therefore, the Court finds that despite Defendants’ seemingly permissible purpose, 15 Plaintiff’s have plausibly alleged that the online quoting platform produced an impermissible 16 disclosure of PII. 17 Accordingly, the Court finds that Plaintiff’s DPPA claim may proceed. 18 C. NEGLIGENCE 19 As a preliminary matter, Defendants argue that Plaintiff’s negligence claim should be 20 dismissed because Plaintiff fails to identify which state’s law applies. (MTD 23:3–4). In 21 rebuttal, Plaintiff contends that this is a requirement in “California courts, not Nevada.” (Resp. 22 22:26–28). 23 United States District Courts in California have found that the failure to identify which 24 state law governs warrants dismissal of the claim. See In re Samsung Galaxy Smartphone Mktg. 25 & Sales Practices Litig., No. 16-06391, 2018 WL 1576457, at *4 (N.D. Cal. Mar. 30, 2018) Page 23 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 24 of 27 1 (“As this Court and other courts in this district have recognized, ‘due to variances among state 2 laws, failure to allege which state law governs a common law claim is grounds for dismissal.’” 3 (quoting In re Nexus 6P, 293 F. Supp. 3d 888, 933 (N.D. Cal. 2018); In re Static Random 4 Access Memory (SRAM) Antitrust Litig., 580 F. Supp. 2d 896, 910 (N.D. Cal. 2008) (dismissing 5 an unjust enrichment claim because “until plaintiffs indicate which [s]tates’ laws support their 6 claim, the Court cannot assess whether the claim has been adequately [pled]”). This is because 7 “[e]ven if the basic elements of the [common law claims] are unlikely to differ much from state 8 to state, ‘there may be (and likely are) differences from state to state regarding issues such as 9 applicable statute of limitations and various equitable defenses.’” Mendez v. Glob. Inst. of Stem 10 Cell Therapy and Rsch., USA, No. 20-cv-915, 2022 WL 3019858, at *4 (S.D. Cal. July 29, 11 2022) (citation omitted). 12 Here, the Court find Defendants’ lack of specificity argument in favor of dismissal is not 13 persuasive. This argument has not been adopted by district courts outside of California, 14 including in any prior decision of this Court. Accordingly, the Court will address whether 15 Plaintiff has alleged a cognizable negligence claim. 16 Defendants additionally argue that Plaintiff’s negligence claim fails as a matter of law 17 because he has not adequately plead causation and damages. (MTD 24:3–14). Plaintiff, in 18 rebuttal, argues that he has alleged damages in the form of the risk of identity theft, loss of 19 value of PII, out-of-pocket costs, and lost time that were caused by Defendants. (Resp. 22:17– 20 24:21). 21 Under Nevada law, “[t]o prevail on a negligence claim, a plaintiff must establish four 22 elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) 23 damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 824 (2009). 24 25 Here, the Court finds that Plaintiff has sufficiently alleged causation and damages. Foremost, Defendants notified Plaintiff in a letter that he was subject to the Data Breach. (Am. Page 24 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 25 of 27 1 Compl. ¶¶ 23–25). See Huynh v. Quora, Inc., No. 18-cv-07597, 2019 WL 11502875, at *4 2 (N.D. Cal. Dec. 19, 2019) (“These alleged are fairly traceable to Quora because Quora notified 3 each of the Plaintiffs that they may have been subject of the 2018 Data Breach.”). “A 4 reasonable inference can therefore be drawn which traces the plausibly alleged harms to the 5 purported mishandling of [Plaintiff’s] personal information through the Data Breach.” Bass, 6 394 F. Supp. 3d at 1033. Moreover, for the reasons set forth above, the Court finds that 7 Plaintiff has sufficiently alleged damages due to the diminished value of his PII. 6 Accordingly, 8 the Court finds that Plaintiff has alleged a cognizable negligence claim. The Court will now address whether Plaintiff’s declaratory relief claim may stand as its 9 10 own cause of action and is not merely a prayer for relief. 11 D. DECLARATORY AND INJUNCTIVE RELIEF 12 Defendants move to dismiss Plaintiff’s request for declaratory and injunctive relief 13 because “they are requests for remedies—not independent causes of action.” (MTD 27:22–23). 14 In response, Plaintiff posits that injunctive and declaratory relief are valid independent causes 15 of action which are necessary to require Defendants to implement additional security measures 16 to prevent future data breaches. (Resp. 24:24–25:9). Under 28 U.S.C. § 2201(a), “any court of the United States, upon the filing of an 17 18 appropriate pleading, may declare the rights and other legal relations of any interested party 19 seeking declaration, whether or not further relief is or could be sought.” The Declaratory 20 Judgment Act “does not create new substantive rights, but merely expands the remedies 21 available in federal courts.” Shell Gulf of Mexico Inc. v. Ctr. for Biological Diversity, Inc., 771 22 F.3d 632, 635 (9th Cir. 2014). “That is not to say that a claim for declaratory relief may never 23 stand on its own.” V5 Techs., LLC v. Switch, Ltd., No. 2:17-cv-2349, 2019 WL 13157438, at *1 24 25 6 Because the Court finds that Plaintiff sufficiently alleged a diminution in the value of his PII, it does not address Plaintiff’s other theories of damages. Page 25 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 26 of 27 1 (D. Nev. Sept. 25, 2019). To survive on its own, a claim for declaratory relief must be 2 justiciable, and the Court must have jurisdiction. Shell Gulf of Mexico Inc., 771 F.3d at 635. A 3 claim for declaratory relief may be “unnecessary where an adequate remedy exists under some 4 other cause of action.” Reyes v. Nationstar Mortg. LLC, No. 15-cv-01109, 2015 WL 455377, at 5 *7 (N.D. Cal. July 28, 2015). Based on the pleadings, Plaintiff’s negligence claim seeks a different relief than his 6 7 claim for injunctive and declaratory relief. The negligence claim requests retrospective relief 8 — namely, damages — for the past harms that Plaintiff have suffered as a result of Defendants’ 9 failure to keep their promises about adequate security. (Am Compl. ¶¶ 89–103). In contrast, 10 the injunctive and declaratory relief claim asks the Court to declare that Defendants must 11 implement additional security measures to prevent the possibility of future data breaches. (Id. 12 104–112). Therefore, the Court concludes that Plaintiff’s injunctive and declaratory relief 13 claim appears to serve a distinct purpose from the negligence claim and thus should not be 14 dismissed. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// Page 26 of 27 Case 2:21-cv-01659-GMN-VCF Document 55 Filed 10/15/22 Page 27 of 27 1 /// 2 /// 3 IV. 4 5 6 7 8 9 10 11 12 13 14 CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, (ECF No. 21), is DENIED. IT IS FURTHER ORDERED that Plaintiff may file an amended complaint within twenty-one days of this order. IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File Supplemental Authority, (ECF No. 32), is GRANTED. IT IS FURTHER ORDERED that Defendants’ Second Motion for Leave to File Supplemental Authority, ECF No. 42), is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Supplemental Authority, (ECF No. 49), is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s Second Motion for Leave to File 15 Supplemental Authority, (ECF No. 52), is GRANTED. 16 15 DATED this _____ day of October, 2022. 17 18 19 ___________________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT 20 21 22 23 24 25 Page 27 of 27

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.