Stevens v. Zappos.com., Inc. (In re Zappos.com., Inc.), 888 F.3d 1020 (2018)

March 8, 2018 · United States Court of Appeals for the Ninth · No. 16-16860
888 F.3d 1020

IN RE ZAPPOS.COM, INC., Customer Data Security Breach Litigation,

Theresa Stevens; Kristin O'Brien; Terri Wadsworth; Dahlia Habashy; Patti Hasner; Shari Simon ; Stephanie Priera; Kathryn Vorhoff; Denise Relethford; Robert Ree, Plaintiffs-Appellants,
v.
Zappos.com., Inc., Defendant-Appellee.

No. 16-16860

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 5, 2017 San Francisco, California
Filed March 8, 2018
Amended April 20, 2018

Douglas Gregory Blankinship (argued), Finkelstein Blankinship Frei-Pearson and Garber LLP, White Plains, New York; David C. O'Mara, The O'Mara Law Firm P.C., Reno, Nevada; Ben Barnow, Barnow and Associates P.C., Chicago, Illinois; Richard L. Coffman, The Coffman Law Firm, Beaumont, Texas; Marc L. Godino, Glancy Binkow & Goldberg LLP, Los Angeles, California; for Plaintiffs-Appellants.

Stephen J. Newman (argued), David W. Moon, Brian C. Frontino, and Julia B. Strickland, Stroock & Stroock & Lavan LLP, Los Angeles, California; Robert McCoy, Kaempfer Crowell, Las Vegas, Nevada; for Defendant-Appellee.

Before: John B. Owens and Michelle T. Friedland, Circuit Judges, and Elaine E. Bucklo,* District Judge.

ORDER

*1022The opinion filed on March 8, 2018, and appearing at 884 F.3d 893, is amended as follows. On page 899:

Replace < Zappos is mistaken ... the present> with < Zappos initially contended on appeal that the relevant time at which to assess standing was the present. But it could not offer any support for that contention. After our opinion was initially filed, Zappos sought rehearing on this issue, urging us to read Rockwell International Corp. v. United States , 549 U.S. 457, 473, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007), and Northstar Financial Advisors Inc. v. Schwab Investments , 779 F.3d 1036, 1044 (9th Cir. 2015), to require that we assess standing at the time Plaintiffs filed their operative Third Amended Complaint, rather than their original Complaints. But whether we look at the original Complaints or Plaintiffs' Third Amended Complaint, the allegations about the increased risk of harm Plaintiffs face are relevantly the same-in the Complaints, Plaintiffs allege that the Zappos data breach places them at imminent risk of identity theft. Zappos argues that this allegation is implausible, but it does so by relying on facts outside the Complaints (or contentions about the absence of certain facts), which makes its argument one that may be appropriate for summary judgment but not one that may support a facial challenge to standing at the motion to dismiss stage>.

Following < rather than their original Complaints.> in the above replacement text, insert a footnote < Zappos's reliance on these cases is also unconvincing, as these cases do not actually address whether standing is measured at the time of an initial complaint or at the time of an amended complaint, as opposed to whether the allegations in an amended complaint may sometimes be considered in evaluating whether there was standing at the time the case was originally filed or whether an amended complaint may be considered a supplemental pleading under Federal Rule of Civil Procedure 15(d).>.

Following < imminent risk of identity theft.> in the above replacement text, insert a footnote < Plaintiff Robert Ree does not clearly allege a risk of future identity theft. But even assuming Ree would not have had standing on his own based on his original Complaint, only one Plaintiff needs to have standing for a class action to proceed. See Bates v. United Parcel Serv., Inc. , 511 F.3d 974, 985 (9th Cir. 2007) (en banc).>.

In the current footnote 11, delete < ; Mollan v. Torrance , 22 U.S. 537, 9 Wheat. 537, 6 L.Ed. 154 (1824).>.

With these amendments, the panel has unanimously voted to deny appellee's petition for rehearing. Judge Owens and Judge Friedland have voted to deny the petition for rehearing en banc. Judge Bucklo recommends denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc are DENIED . No further petitions shall be entertained.

*1023OPINION

FRIEDLAND, Circuit Judge:

In January 2012, hackers breached the servers of online retailer Zappos.com, Inc. ("Zappos") and allegedly stole the names, account numbers, passwords, email addresses, billing and shipping addresses, telephone numbers, and credit and debit card information of more than 24 million Zappos customers. Several of those customers filed putative class actions in federal courts across the country, asserting that Zappos had not adequately protected their personal information. Their lawsuits were consolidated for pretrial proceedings.

Although some of the plaintiffs alleged that the hackers used stolen information about them to conduct subsequent financial transactions, the plaintiffs who are the focus of this appeal ("Plaintiffs") did not. This appeal concerns claims based on the hacking incident itself, not any subsequent illegal activity.

The district court dismissed Plaintiffs' claims for lack of Article III standing. In this appeal, Plaintiffs contend that the district court erred in doing so, and they press several potential bases for standing, including that the Zappos data breach put them at risk of identity theft.

We addressed standing in an analogous context in Krottner v. Starbucks Corp. , 628 F.3d 1139 (9th Cir. 2010). There, we held that employees of Starbucks had standing to sue the company based on the risk of identity theft they faced after a company laptop containing their personal information was stolen. Id. at 1140, 1143. We reject Zappos's argument that Krottner is no longer good law after Clapper v. Amnesty International USA , 568 U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), and hold that, under Krottner , Plaintiffs have sufficiently alleged standing based on the risk of identity theft.1

I.

When they bought merchandise on Zappos's website, customers provided personal identifying information ("PII"), including their names, account numbers, passwords, email addresses, billing and shipping addresses, telephone numbers, and credit and debit card information. Sometime before January 16, 2012, hackers targeted Zappos's servers, stealing the PII of more than 24 million of its customers, including their full credit card numbers.2 On January 16, Zappos sent an email to its customers, notifying them of the theft of their PII. The company recommended "that they reset their Zappos.com account passwords and change the passwords 'on any other web site where [they] use the same or a similar password.' " Some customers responded almost immediately by filing putative class actions in federal district courts across the country.

In these suits, Plaintiffs alleged an "imminent" risk of identity theft or fraud from the Zappos breach. Relying on definitions *1024from the United States Government Accountability Office ("GAO"), they characterized "identity theft" and "identity fraud" as "encompassing various types of criminal activities, such as when PII is used to commit fraud or other crimes," including "credit card fraud, phone or utilities fraud, bank fraud and government fraud."3

The Judicial Panel on Multidistrict Litigation transferred several putative class action lawsuits alleging harms from the Zappos data breach to the District of Nevada for pretrial proceedings. After several years of pleadings-stage litigation, including a hiatus for mediation, the district court granted in part and denied in part Zappos's motion to dismiss the Third Amended Consolidated Complaint ("Complaint") and granted Zappos's motion to strike the Complaint's class allegations. The court distinguished between two groups of plaintiffs: (1) plaintiffs named only in the Third Amended Complaint who alleged that they had already suffered financial losses from identity theft caused by Zappos's breach, and (2) plaintiffs named in earlier complaints who did not allege having already suffered financial losses from identity theft.

The district court ruled that the first group of plaintiffs had Article III standing because they alleged "that actual fraud occurred as a direct result of the breach." But the court ruled that the second group of plaintiffs (again, here referred to as "Plaintiffs") lacked Article III standing and dismissed their claims without leave to amend because Plaintiffs had "failed to allege instances of actual identity theft or fraud." The parties then agreed to dismiss all remaining claims with prejudice, and Plaintiffs appealed.

II.

We review the district court's standing determination de novo. See Maya v. Centex Corp. , 658 F.3d 1060, 1067 (9th Cir. 2011). To have Article III standing,

a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; see also Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). A plaintiff threatened with future injury has standing to sue "if the threatened injury is 'certainly impending,' or there is a 'substantial risk that the harm will occur.' " Susan B. Anthony List v. Driehaus , --- U.S. ----, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414 & n.5, 133 S.Ct. 1138, 185 (L.Ed.2d 264 2013) ) (internal quotation marks omitted).

III.

We addressed the Article III standing of victims of data theft in *1025Krottner v. Starbucks Corp. , 628 F.3d 1139 (9th Cir. 2010). In Krottner , a thief stole a laptop containing "the unencrypted names, addresses, and social security numbers of approximately 97,000 Starbucks employees." Id. at 1140. "Starbucks sent a letter to ... affected employees alerting them to the theft and stating that Starbucks had no indication that the private information ha[d] been misused," but advising them to "monitor [their] financial accounts carefully for suspicious activity and take appropriate steps to protect [themselves] against potential identity theft." Id. at 1140-41 (internal quotation marks omitted). Some employees sued, and the only harm that most alleged was an "increased risk of future identity theft." Id. at 1142. We determined this was sufficient for Article III standing, holding that the plaintiffs had "alleged a credible threat of real and immediate harm" because the laptop with their PII had been stolen. Id. at 1143.

A.

Before analyzing whether Krottner controls this case, we must determine whether Krottner remains good law after the Supreme Court's more recent decision in Clapper v. Amnesty International USA , 568 U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), which addressed a question of standing based on the risk of future harm.

As a three-judge panel, we are bound by opinions of our court on issues of federal law unless those opinions are "clearly irreconcilable" with a later decision by the Supreme Court or our court sitting en banc. Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc). This is the first case to require us to consider whether Clapper and Krottner are clearly irreconcilable, and we conclude that they are not.

The plaintiffs in Clapper challenged surveillance procedures authorized by the Foreign Intelligence Surveillance Act of 1978-specifically, in 50 U.S.C. § 1881a (2012) (amended 2018).4 Clapper , 568 U.S. at 401, 133 S.Ct. 1138. The plaintiffs, who were "attorneys and human rights, labor, legal, and media organizations whose work allegedly require[d] them to engage in sensitive and sometimes privileged telephone and e-mail communications with ... individuals located abroad," sued for declaratory relief to invalidate § 1881a and an injunction against surveillance conducted pursuant to that section. Id. at 401, 406, 133 S.Ct. 1138. The plaintiffs argued that they had Article III standing to challenge § 1881a"because there [was] an objectively reasonable likelihood that their communications [would] be acquired under § 1881a at some point in the future." Id. at 401, 133 S.Ct. 1138. The Supreme Court rejected this basis for standing, explaining that "an objectively reasonable likelihood" of injury was insufficient, and that the alleged harm needed to "satisfy the well-established requirement that threatened injury must be 'certainly impending.' " Id. (quoting Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ).

The Court then held that the plaintiffs' theory of injury was too speculative to constitute a "certainly impending" injury.

*1026Id. at 410, 133 S.Ct. 1138. The plaintiffs had not alleged that any of their communications had yet been intercepted. Id. at 411, 133 S.Ct. 1138. The Court characterized their alleged injury as instead resting on a series of inferences, including that:

(1) the Government will decide to target the communications of non-U.S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government's proposed surveillance procedures satisfy § 1881a's many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents' contacts; and (5) respondents will be parties to the particular communications that the Government intercepts.

Id. at 410, 133 S.Ct. 1138. The Court declined to speculate about what it described as independent choices by the government about whom to target for surveillance and what basis to invoke for such targeting, or about whether the Foreign Intelligence Surveillance Court would approve any such surveillance. Id. at 412-13, 133 S.Ct. 1138. The plaintiffs' multi-link chain of inferences was thus "too speculative" to constitute a cognizable injury in fact. Id. at 401, 133 S.Ct. 1138.

Unlike in Clapper , the plaintiffs' alleged injury in Krottner did not require a speculative multi-link chain of inferences. See Krottner , 628 F.3d at 1143. The Krottner laptop thief had all the information he needed to open accounts or spend money in the plaintiffs' names-actions that Krottner collectively treats as "identity theft." Id. at 1142. Moreover, Clapper 's standing analysis was "especially rigorous" because the case arose in a sensitive national security context involving intelligence gathering and foreign affairs, and because the plaintiffs were asking the courts to declare actions of the executive and legislative branches unconstitutional. Clapper , 568 U.S. at 408, 133 S.Ct. 1138 (quoting Raines v. Byrd , 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ). Krottner presented no such national security or separation of powers concerns.

And although the Supreme Court focused in Clapper on whether the injury was "certainly impending," it acknowledged that other cases had focused on whether there was a "substantial risk" of injury.5 Id. at 414 & n.5, 133 S.Ct. 1138. Since Clapper , the Court reemphasized in Susan B. Anthony List v. Driehaus , --- U.S. ----, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014), that "[a]n allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk that the harm will occur.' " Id. at 2341 (quoting Clapper , 568 U.S. at 414 & n.5, 133 S.Ct. 1138 ) (internal quotation marks omitted).

For all these reasons, we hold that Krottner is not clearly irreconcilable with Clapper and thus remains binding.6 See Miller , 335 F.3d at 900.

*1027B.

We also conclude that Krottner controls the result here. In Krottner , we held that the plaintiffs had "alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data." 628 F.3d at 1143. The threat would have been "far less credible," we explained, "if no laptop had been stolen, and [they] had sued based on the risk that it would be stolen at some point in the future." Id. But the sensitivity of the personal information, combined with its theft, led us to conclude that the plaintiffs had adequately alleged an injury in fact supporting standing. Id. The sensitivity of the stolen data in this case is sufficiently similar to that in Krottner to require the same conclusion here.

Plaintiffs allege that the type of information accessed in the Zappos breach can be used to commit identity theft, including by placing them at higher risk of "phishing" and "pharming," which are ways for hackers to exploit information they already have to get even more PII. Plaintiffs also allege that their credit card numbers were within the information taken in the breach-which was not true in Krottner .7 And Congress has treated credit card numbers as sufficiently sensitive to warrant legislation prohibiting merchants from printing such numbers on receipts-specifically to reduce the risk of identity theft. See 15 U.S.C. § 1681c(g) (2012). Although there is no allegation in this case that the stolen information included social security numbers, as there was in Krottner , the information taken in the data breach still gave hackers the means to commit fraud or identity theft, as Zappos itself effectively acknowledged by urging affected customers to change their passwords on any other account where they may have used "the same or a similar password."8

Indeed, the plaintiffs who alleged that the hackers had already commandeered their accounts or identities using information taken from Zappos specifically alleged that they suffered financial losses because of the Zappos data breach (which is why the district court held that they had standing). Although those plaintiffs' claims are not at issue in this appeal, their alleged harm undermines Zappos's assertion that the data stolen in the breach cannot be used for fraud or identity theft. In addition, two plaintiffs whose claims are at issue in this appeal say that the hackers took over their AOL accounts and sent *1028advertisements to people in their address books.9 Though not a financial harm, these alleged attacks further support Plaintiffs' contention that the hackers accessed information that could be used to help commit identity fraud or identity theft. We thus conclude that Plaintiffs have sufficiently alleged an injury in fact under Krottner .

Zappos contends that even if the stolen data was as sensitive as that in Krottner , too much time has passed since the breach for any harm to be imminent. Zappos initially contended on appeal that the relevant time at which to assess standing was the present. But it could not offer any support for that contention. After our opinion was initially filed, Zappos sought rehearing on this issue, urging us to read Rockwell International Corp. v. United States , 549 U.S. 457, 473, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007), and Northstar Financial Advisors Inc. v. Schwab Investments , 779 F.3d 1036, 1044 (9th Cir. 2015), to require that we assess standing at the time Plaintiffs filed their operative Third Amended Complaint, rather than their original Complaints.10 But whether we look at the original Complaints or Plaintiffs' Third Amended Complaint, the allegations about the increased risk of harm Plaintiffs face are relevantly the same-in the Complaints, Plaintiffs allege that the Zappos data breach places them at imminent risk of identity theft.11 Zappos argues that this allegation is implausible, but it does so by relying on facts outside the Complaints (or contentions about the absence of certain facts), which makes its argument one that may be appropriate for summary judgment but not one that may support a facial challenge to standing at the motion to dismiss stage12

Plaintiffs also specifically allege that "[a] person whose PII has been obtained and compromised may not see the full extent of *1029identity theft or identity fraud for years." And "it may take some time for the victim to become aware of the theft."

Assessing the sum of their allegations in light of Krottner , Plaintiffs have sufficiently alleged an injury in fact based on a substantial risk that the Zappos hackers will commit identity fraud or identity theft.13

C.

The remaining Article III standing requirements are also satisfied. Plaintiffs sufficiently allege that the risk of future harm they face is " 'fairly traceable' to the conduct being challenged"-here, Zappos's failure to prevent the breach. Wittman v. Personhuballah , --- U.S. ----, 136 S.Ct. 1732, 1736, 195 L.Ed.2d 37 (2016) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

That hackers might have stolen Plaintiffs' PII in unrelated breaches, and that Plaintiffs might suffer identity theft or fraud caused by the data stolen in those other breaches (rather than the data stolen from Zappos), is less about standing and more about the merits of causation and damages. As the Seventh Circuit recognized in Remijas v. Neiman Marcus Group, LLC , 794 F.3d 688 (7th Cir. 2015), that "some other store might [also] have caused the plaintiffs' private information to be exposed does nothing to negate the plaintiffs' standing to sue" for the breach in question.14 Id. at 696 ; cf. Price Waterhouse v. Hopkins , 490 U.S. 228, 263, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring in the judgment) ("[I]n multiple causation cases, ... the common law of torts has long shifted the burden of proof to multiple defendants to prove that their negligent actions were not the 'but-for' cause of the plaintiff's injury." (citing *1030Summers v. Tice , 33 Cal.2d 80, 199 P.2d 1, 3-4 (Cal. 1948) ) ), superseded on other grounds by 42 U.S.C. § 2000e-2(m) (2012).

The injury from the risk of identity theft is also redressable by relief that could be obtained through this litigation. See Lujan , 504 U.S. at 561, 112 S.Ct. 2130. If Plaintiffs succeed on the merits, any proven injury could be compensated through damages. See Remijas , 794 F.3d at 696-97. And at least some of their requested injunctive relief would limit the extent of the threatened injury by helping Plaintiffs to monitor their credit and the like.15 See Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 154-55, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010).

IV.

For the foregoing reasons, we REVERSE the district court's judgment as to Plaintiffs' standing and REMAND .