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First Reported Shine the Light Suit Dismissed for Failure to State Cognizable Injury

Posted in Motion to Dismiss, Privacy and Security Litigation

Last week, a plaintiff’s putative class action alleging a violation of California’s Shine the Light law, Cal. Civ. Code § 1798.83, was dismissed without prejudice.  See Boorstein v. Men’s Journal LLC, No. 12-cv-00771-DSF-E, 2012 WL 2152815 (C.D. Cal. June 14, 2012). The suit, one of several other similar pending suits, is the first reported decision applying the Shine the Light Law.

The plaintiff subscribed to the magazine Men’s Journal and visited the magazine’s website. The plaintiff’s suit was based solely on the defendant’s alleged failure to provide Shine the Light disclosures.  The resolution of the motion to dismiss was focused on the plaintiff’s three theories of injury, all of which the court rejected.

First, the plaintiff claimed that the defendant’s non-compliance with Shine the Light diminished the value of his personal information.  The court rejected that argument, holding that even if the diminished-value theory was cognizable, the alleged injury was not caused by the violation of Shine the Light.  The court noted that Shine the Light “does not prohibit Defendant from selling Plaintiff’s personal information. Instead, it requires Defendant to provide information regarding what information is sold, and to whom. Because the information may be sold even if Defendant complies with the STL law, Defendant’s failure to comply does not reduce the value of Plaintiff’s personal information.”

Second, the plaintiff claimed that he suffered a statutory injury by being denied information to which he was entitled.  The court rejected that argument based on precedent holding that an “informational injury” is only cognizable when a plaintiff requests information and the request is denied.  According to the court, the contact information required to be disclosed by Shine the Light is to facilitate requests for information, and the failure to provide that contact information “inflicts merely a procedural injury.”

Third, the plaintiff argued that he reasonably expected the defendant to comply with all applicable state and federal laws in connection with his magazine subscription.  The court rejected that argument, noting that compliance with Shine the Light was not part of his bargain with the defendant.

The plaintiff’s count under the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, was also dismissed because the plaintiff did not allege that he lost money or property as a result of the alleged Shine the Light violation.

Boorstein may indicate trouble for plaintiffs’ lawyers looking to bring these types of cases, particularly if other courts are to follow Boorstein.  Although the court suggested that a plaintiff could state a claim if he requested Shine the Light disclosures and was denied that information, this places a very high burden on plaintiffs and substantially decreases the size of any potential class.  Companies should continue to monitor these cases and take steps to comply with the statute, including any requests for disclosures – but at least one court now recognizes that a failure to comply does not necessarily create a cognizable injury to a consumer.