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`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 1 of 18
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`
`
`
`RANDALL W. EDWARDS (S.B. #179053)
`redwards@omm.com
`MATTHEW D. POWERS (S.B. #212682)
`mpowers@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center
`28ᵗʰ Floor
`San Francisco, California 94111-3823
`Telephone:
`+1 415 984 8700
`Facsimile:
`+1 415 984 8701
`
`WILLIAM K. PAO (S.B. #252637)
`wpao@omm.com
`O’MELVENY & MYERS LLP
`400 S. Hope. St., 18th Floor
`Los Angeles, California 90071-2899
`Telephone: +1 213 430 6000
`Facsimile: +1 213 430 6407
`Attorneys for Defendant Apple Inc.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`LUCILA BAPTISTE, individually and on
`behalf of all others similarly situated,
`
`Plaintiff,
`
`v.
`APPLE INC., a California corporation,
`Defendant.
`
`
`
`
`
`
`
`Case No. 4:22-cv-02888-HSG
`DEFENDANT APPLE INC.’S NOTICE OF
`MOTION AND MOTION TO DISMISS
`PLAINTIFF’S COMPLAINT;
`MEMORANDUM OF POINTS AND
`AUTHORITIES
`Hearing Date: October 13, 2022
`Time:
`2 p.m.
`Judge:
`Hon. Haywood S. Gilliam, Jr.
`Courtroom:
`Courtroom 2, 4th Floor
`
`Complaint Filed: March 30, 2022 (case
`removed to this Court May 16, 2022)
`
`
`
`
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 2 of 18
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION .............................................................................................................. 2
`BACKGROUND ................................................................................................................ 3
`LEGAL STANDARDS ....................................................................................................... 5
`ARGUMENT ...................................................................................................................... 6
`A.
`Plaintiff Fails to Plead Facts to Support a Claim Under the NYVCPA .................. 6
`B.
`No Private Right of Action Exists for Wrongful Retention of Consumer PII
`Under the NYVCPA ............................................................................................... 7
`Apple is Not a “Video Tape Service Provider” under the NYVCPA ................... 12
`C.
`LEAVE TO AMEND ........................................................................................................ 13
`CONCLUSION ................................................................................................................. 13
`
`i
`
`APPLE’S MOTION TO DISMISS
`CASE NO. 4:22-CV-02888-HSG
`
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`
`I.
`II.
`III.
`IV.
`
`V.
`VI.
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`

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`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 3 of 18
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................................................... 5
`
`Balistreri v. Pacifica Police Dep’t,
`901 F.2d 696 (9th Cir. 1988) ...................................................................................................... 5
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ................................................................................................................... 5
`
`Cook, Perkiss & Liehe, Inc. v. N. California Collection Serv. Inc.,
`911 F.2d 242 (9th Cir. 1990) .................................................................................................... 13
`
`Daniel v. Cantrell,
`375 F.3d 377 (6th Cir. 2004) .............................................................................................. 11, 12
`
`Daniels-Hall v. Nat’l Educ. Ass’n,
`629 F.3d 992 (9th Cir. 2010) .................................................................................................. 5, 7
`
`DeSoto v. Yellow Freight Sys., Inc.,
`957 F.2d 655 (9th Cir. 1992) ...................................................................................................... 6
`
`In re Hulu Priv. Litig.,
`No. C 11–03764 LB, 2012 WL 3282960 (N.D. Cal. Aug. 10, 2012) ................................. 12-13
`
`In re Nickelodeon Consumer Priv. Litig.,
`827 F.3d 262 (3d Cir. 2016) ..................................................................................................... 11
`
`Khoja v. Orexigen Therapeutics, Inc.,
`899 F.3d 988 (9th Cir. 2018) ............................................................................................... 5-6, 7
`
`Mollett v. Netflix, Inc.,
`795 F.3d 1062 (9th Cir. 2015) .................................................................................................. 11
`
`Moss v. U.S.,
`572 F.3d 962 (9th Cir. 2009) ...................................................................................................... 5
`
`Opperman v. Path, Inc.,
`84 F. Supp. 3d 962 (N.D. Cal. 2015) ......................................................................................... 7
`
`Rodriguez v. Sony Computer Ent. Am., LLC,
`801 F.3d 1045 (9th Cir. 2015) .................................................................................................. 11
`
`Rutter v. Apple Inc.,
`No. 21-CV-04077-HSG, 2022 WL 1443336 (N.D. Cal. May 6, 2022) ..................................... 7
`
`
`
`
`
`- ii -
`
`APPLE’S MOTION TO DISMISS
`CASE NO. 4:22-CV-02888-HSG
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 4 of 18
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`Sterk v. Redbox Automated Retail, LLC,
`672 F.3d 535 (7th Cir. 2012) (Posner, J.) ................................................................................ 11
`
`United States v. Corinthian Colleges,
`655 F.3d 984 (9th Cir. 2011) .................................................................................................... 13
`
`Yellen v. Confederated Tribes of Chehalis Rsrv.,
`141 S. Ct. 2434 (2021) ............................................................................................................. 13
`
`Statutes
`
`18 U.S.C. § 2710 ............................................................................................................................ 11
`
`18 U.S.C. § 2710(c) ................................................................................................................. 11, 12
`
`18 U.S.C. § 2710(e) ....................................................................................................................... 11
`
`N.Y. GBL § 672(4) ........................................................................................................................ 12
`
`N.Y. GBL § 673(1) .......................................................................................................................... 8
`
`N.Y. GBL § 673(2) .......................................................................................................................... 8
`
`N.Y. GBL § 673(3) .......................................................................................................................... 8
`
`N.Y. GBL § 673(4) .................................................................................................................... 8, 10
`
`N.Y. GBL § 673(5) ................................................................................................................. passim
`
`N.Y. GBL § 675(1) .................................................................................................................... 5, 10
`
`Other Authorities
`
`Aggrieved, BLACK’S LAW DICTIONARY (11th ed. 2019) .................................................................. 9
`
`Apple Media Services Terms and Conditions (May 19, 2019), available at
`https://web.archive.org/web/20200429212422/https://www.apple.com/legal/int
`ernet-services/itunes/us/terms.html ............................................................................................ 3
`
`Apple Privacy Policy (Dec. 31, 2019), available at
`https://web.archive.org/web/20200430041948/https://www.apple.com/legal/pri
`vacy/en-ww/ ............................................................................................................................... 6
`
`Damages, BLACK’S LAW DICTIONARY (11th ed. 2019) ................................................................... 9
`
`Material, BLACK'S LAW DICTIONARY (11th ed. 2019) ................................................................... 12
`
`Rules
`
`Fed. R. Evid. 201(b)(1)–(2).............................................................................................................. 6
`
`
`
`
`
`- iii -
`
`APPLE’S MOTION TO DISMISS
`CASE NO. 4:22-CV-00845-HSG
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 5 of 18
`
`
`
`NOTICE OF MOTION AND MOTION TO DISMISS
`TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
`Please take notice that on October 13, 2022 at 2 p.m., or as soon thereafter as this matter
`may be heard by the Honorable Haywood S. Gilliam, Jr. in Courtroom 2, 4th Floor, of the above-
`entitled Court located at 1301 Clay Street, Oakland, California, 94612, Defendant Apple Inc. will,
`and hereby does, move to dismiss with prejudice the Complaint of Plaintiff Lucila Baptiste,
`individually and on behalf of all others similarly situated, and each claim asserted therein against
`Apple.
`Apple brings this Motion pursuant to Federal Rule of Civil Procedure 12(b)(6) because
`Plaintiff fails to state a claim for relief as to any claim alleged against Apple. Plaintiff has not
`pled facts supporting a cause of action under the New York Video Consumer Privacy Act, N.Y.
`General Business Law §§ 670-675, no private right of action for wrongful retention of consumer
`personally identifying information (“PII”) exists, and Apple is in any event not a video tape
`service provider subject to the statute. This Motion is based on this Notice of Motion and
`Motion, Memorandum of Points and Authorities, Apple’s Request for Judicial Notice, the
`Declaration of Randall W. Edwards and its exhibits, and all pleadings, arguments, and matters
`before the Court.
`
`
`Dated: June 15, 2022
`
`
`
`
`
`
`O’MELVENY & MYERS LLP
`/s/ Randall W. Edwards
`Randall W. Edwards
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8700
`Facsimile: (415) 984-8701
`E-mail: redwards@omm.com
`
`Attorney for Defendant Apple Inc.
`
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`- 1 -
`
`APPLE’S MOTION TO DISMISS
`CASE NO. 4:22-CV-02888-HSG
`
`

`

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`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 6 of 18
`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`
`I.
`
`This lawsuit is a misguided attempt to obtain money from Apple based on an inapplicable
`New York statute that does not even allow for private plaintiffs to sue for the wrongful retention
`of information erroneously alleged here. Plaintiff’s Complaint does not allege any wrongful
`dissemination or use of any PII. The Complaint also does not allege any facts that Apple failed to
`comply with its disclosures regarding the company’s use or retention of consumer PII. Nor does
`it allege any facts—as opposed to a bare assertion—that any retention exceeded the period
`expressly permitted by the statute. Apple values and safeguards its customers’ privacy, and the
`company’s actions with respect to iTunes user data matches its legal obligations and what it tells
`customers. And here, Apple retains consumer PII data for good reasons—including to
`recommend iTunes rental options to users based upon their past rental history (with their
`consent), and to allow customer rentals using the same credit card information employed in prior
`transactions. In short, Plaintiff’s lawsuit is factually misguided because there is no plausible
`allegation that Apple wronged any iTunes user in any way.
`Three independent reasons each warrant dismissal of the Complaint. First, Plaintiff has
`failed to adequately allege facts supporting a violation of the New York Video Consumer Privacy
`Act (“NYVCPA”). The statute does not impose a definite time period for deleting consumer PII,
`and instead allows for its continued retention when necessary for the purpose for which the
`information was collected or when there are pending requests or orders for the information.
`Plaintiff alleges that consumer PII regarding iTunes is not needed longer than 90 days to process
`refunds, but she asserts no facts that would or could establish that the only use for PII is refund
`processing. The NYVCPA expressly protects the right of businesses to use collected information
`in their ongoing business operations, and even to disclose the information when necessary.
`Plaintiff makes no factual allegation—nor could she—that processing refunds is the only purpose
`for retaining customer PII. Indeed, judicially noticeable disclosures in Apple’s Media Services
`Terms and Conditions (the “Terms and Conditions”) establish that customers are expressly told of
`other purposes for its retention and continued use in providing services that benefit those
`
`- 2 -
`
`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
`
`
`
`
`

`

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`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 7 of 18
`
`
`
`customers.
`Second, contrary to Plaintiff’s argument in her Complaint, no private right of action exists
`for alleged wrongful retention of consumer PII under the NYVCPA. The statute does not allow
`this, no court has ever recognized such a claim, and courts have repeatedly rejected analogous
`claims under the Video Privacy Protection Act (“VPPA”).
`Third, this Court should hold that Apple is not a “video tape service provider” under the
`NYVCPA because the company is a streaming services provider and is not in the business of
`distributing prerecorded video cassette tapes or similar audio visual materials, which inherently
`should be understood to involve physical media.
`This lawsuit is meritless, and its problems cannot be fixed. The Court should dismiss
`Plaintiff’s claim with prejudice under Rule 12(b)(6).
`II.
`BACKGROUND
`
`Apple produces and sells not only well-known devices like the iPhone and iPad but also
`personalized services such as iTunes, which allows users to manage their media collection, sync
`content from other devices including their computer, and purchase or rent music and movies from
`the iTunes Store. Among other benefits, iTunes offers personalized recommendation features, as
`described in the Apple Media Services Terms and Conditions (May 19, 2019), available at
`https://web.archive.org/web/20200429212422/https://www.apple.com/legal/internet-
`services/itunes/us/terms.html.1 As disclosed, Apple “may recommend Content . . . based on [a
`consumer’s prior] downloads, purchases and other activities” and a consumer “may opt out from
`receiving such personalized recommendations for some Services in your account settings.”
`Edwards Decl. Ex. A at § E. The Terms and Conditions also disclose that recommendation
`features “may require [a consumer’s] permission before they are turned on.” Id. If the consumer
`turns on these features, they are asked to “give Apple permission to collect and store certain data,
`including but not limited to data about your device activity, location, and usage.” Id. In addition,
`
`1 This document was operative and publicly available in April 2020 when Plaintiff asserts that she
`rented a movie on iTunes. Complaint ¶ 11. The Terms and Conditions is attached as Exhibit A
`to the Declaration of Randall W. Edwards (“Edwards Decl.”).
`
`
`- 3 -
`
`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
`
`
`
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 8 of 18
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`consumers are asked to “[p]lease carefully read the information presented when you turn on these
`features.” Id.
`Plaintiff’s claim challenges Apple’s alleged retention of information about video rentals
`without consent. According to Plaintiff, Apple unlawfully retained PII about her and other
`members of the putative class “including their names, addresses, credit card information, and
`video rental history” regarding their iTunes rental history in violation of the NYVCPA.
`Complaint ¶¶ 1, 3. As to herself, she alleges that she rented a movie from iTunes on April 11,
`2020, that she provided her “name, address, and credit card information” for that rental, and that
`“as of March 18, 2022 [her] iTunes’s account history still displays the title of the video she
`rented, as well as the date she rented it and the price she paid for it.” Id. ¶¶ 11-13. She likewise
`alleges more generally that to rent a video, a consumer “must first create an account with iTunes
`which requires them to input their name, date of birth, email address, billing address, and credit
`card information.” Id. ¶ 29. The consumer can then identify a video on iTunes and is prompted
`to enter her account username and password before rental. Id. ¶ 30. Plaintiff also states that
`Apple requires consumers to use a credit or debit card to purchase or rent a video. Id. ¶¶ 35-37.
`Plaintiff alleges that Apple was required to “destroy personally identifiable information as
`soon as practicable, but no later than one year from the date the information is no longer
`necessary for the purpose for which it was collected.” Id. ¶¶ 48-58 (citing N.Y. GBL § 673(5)).
`Her allegations address neither the entirety of Apple’s uses for the information that were
`disclosed in advance, nor its reasons for the alleged retention of the information. Instead,
`Plaintiff addresses only whether the information must be retained for refunds. She asserts that
`because “customer video rental transactions are completed within 30 days of the rental . . . and
`Apple does not provide refunds for charges that are more than 90 days old, it is not necessary for
`Apple to store and maintain Plaintiff’s and the Class’s personally identifiably information and
`personal video rental histories for longer than 90 days.” Id. ¶¶ 54-56. From this lone fact, she
`concludes that Apple does not have a practice or policy to timely destroy “personally identifiably
`information as required by the NYVCPA.” Id. ¶ 57.
`
`Plaintiff filed this class action complaint on March 30, 2022 in the Superior Court of the
`
`- 4 -
`
`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
`
`
`
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 9 of 18
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`State of California for the County of Santa Clara. According to Plaintiff, the NYVCPA creates a
`private right of action for failing to “destroy personally identifiable information as soon as
`practicable, but no later than one year from the date the information is no longer necessary for the
`purpose for which it was collected ... .” Id. ¶¶ 24-25 (citing N.Y. GBL §§ 673(5), 675(1)).
`Plaintiff seeks monetary damages of at least $500 for herself and each member of the putative
`class plus costs, disbursements, and reasonable attorneys’ fees. Id. ¶ 58. The putative class is
`defined to include “all New York residents who (a) rented a video from Apple through iTunes
`wherein (b) Apple retained for more than 90 days their personally identifiable information,
`including information that identifies the person as having requested or obtained specific video
`materials or services, and (c) without their consent.” Id. ¶ 41.
`On May 16, 2022, Apple timely removed the case to this Court. ECF No. 1.
`III. LEGAL STANDARDS
`Dismissal under Federal Rule of Civil Procedure 12(b)(6) is warranted where there is
`either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a
`cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
`A “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
`than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
`not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555(2007) (alteration in original). Instead,
`“for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and
`reasonable inferences from that content, must be plausibly suggestive of a claim entitling the
`plaintiff to relief.” Moss v. U.S., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. Iqbal, 556
`U.S. 662, 677 (2009)).
`While the scope of review on a motion to dismiss is limited to the complaint, a court may
`consider documents on which the complaint necessarily relies if: “(1) the complaint refers to the
`document; (2) the document is central to the plaintiff[’s] claim; and (3) no party questions the
`authenticity of the copy attached to the 12(b)(6) motion.” Daniels-Hall v. Nat’l Educ. Ass’n, 629
`F.3d 992, 998 (9th Cir. 2010)). Likewise, courts can judicially notice facts that cannot be
`
`reasonably contested, even if not incorporated by reference into the complaint. Khoja v. Orexigen
`
`- 5 -
`
`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
`
`
`
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 10 of 18
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`Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).
`Finally, while a plaintiff may be granted leave to amend her complaint to cure a pleading
`deficiency “[a] district court does not err in denying leave to amend where the amendment would
`be futile.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
`IV. ARGUMENT
`A.
`Plaintiff Fails to Plead Facts to Support a Claim Under the NYVCPA
`Plaintiff has not—and cannot—adequately plead facts establishing any NYVCPA
`violation by Apple. Under the plain language of the statute, a provider can retain consumer PII
`for “one year from the date the information is no longer necessary for the purpose for which it
`was collected and there are no pending requests or orders for access to such information under
`this article.” N.Y. GBL § 673(5). Thus, to state a claim, the Complaint must plead facts
`establishing, at a minimum, retention for more than a year after the information was necessary for
`the purposes of which it was collected. The Complaint does not do so.
`To be sure, the Complaint does allege that Apple need not retain consumer PII regarding
`iTunes for longer than 90 days to be able to process refunds, given the short refund window. Id.
`¶¶ 37, 40, 54. But it does not (and could not) allege facts that this is the only “necessary” purpose
`of collection, nor does it address the many other publicly disclosed purposes in Apple’s Terms
`and Conditions. In that policy, Apple discloses to all users that the company uses consumer PII to
`facilitate the iTunes experience and discloses to consumers that Apple “may recommend Content
`. . . based on [a consumer’s prior] downloads, purchases and other activities” and that a consumer
`“may opt out from receiving such personalized recommendations for some Services in your
`account settings.” See Edwards Decl. Ex. A at § E.
`This Court should take judicial notice of Apple’s Terms and Conditions, and the Apple
`Privacy Policy which is incorporated by reference therein2, because neither document is “subject
`
`2 Apple Privacy Policy (Dec. 31, 2019), available at
`https://web.archive.org/web/20200430041948/https://www.apple.com/legal/privacy/en-ww/ is the
`version that was operative in April 2020 when Plaintiff asserts that she rented a movie from
`iTunes. Complaint ¶ 11. Apple’s Privacy Policy is attached as Exhibit B to the Declaration of
`Randall W. Edwards.
`
`
`- 6 -
`
`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
`
`
`
`
`

`

`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 11 of 18
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`to reasonable dispute” since each is “generally known” and “can be accurately and readily
`determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.
`201(b)(1)–(2); see also Opperman v. Path, Inc., 84 F. Supp. 3d 962, 976 (N.D. Cal. 2015) (taking
`judicial notice of Apple’s Privacy Policy); Rutter v. Apple Inc., No. 21-CV-04077-HSG, 2022
`WL 1443336, at *3 (N.D. Cal. May 6, 2022) (Gilliam, J.) (granting request for judicial notice of
`Apple’s iCloud Terms and Conditions). They also are incorporated by reference into the
`Complaint because they are directly referenced and govern Apple’s use of consumer PII.
`Complaint ¶ 36 (“iTunes’s terms and conditions provide that all transactions are final”); see also
`Daniels-Hall, 629 F.3d at 998.
`Moreover, the Terms and Conditions reference and expressly incorporate Apple’s Privacy
`Policy which discloses that the company “retain[s] . . . personal information for the period
`necessary to fulfill the purposes outlined in this Privacy Policy and our service specific privacy
`summaries.” See Edwards Decl. Ex. B at 5. Apple identifies the purposes for which it uses
`personal information “including . . . to protect our services for the benefit of all our users,” “to
`assist with identification of users,” and “to send important notices, such as communications about
`purchases and changes to our terms, conditions, and policies,” which consumers may “opt out of
`receiving.” Id. at 2. Apple’s Privacy Policy is subject to judicial notice because it is incorporated
`by reference into the Terms and Conditions which Plaintiff describes in the Complaint, see
`Daniels-Hall, 629 F.3d at 998, and in any event, it is a fact that cannot be reasonably contested,
`even if not incorporated by reference into the complaint. Khoja, 899 F.3d at 999. Plaintiff has
`not and cannot allege facts plausibly pleading that Apple’s retention of her PII was inconsistent
`with the (disclosed) purposes for the collection, and absent such facts, the NYVCPA simply does
`not require destruction of the data. N.Y. GBL § 673(5).
`B.
`No Private Right of Action Exists for Wrongful Retention of Consumer PII
`Under the NYVCPA
` Plaintiff’s NYVCPA claim also fails because no private right of action exists for an
`alleged violation of Section 673(5)’s non-retention obligation. To Apple’s knowledge, no court
`has ever recognized a private right of action for wrongful retention of consumer PII under the
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`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
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`Case 4:22-cv-02888-HSG Document 11 Filed 06/15/22 Page 12 of 18
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`NYVCPA. And such a private right of action would be contrary to the plain language and
`structure of the statute, as well as inconsistent with case law which has refused to recognize any
`such cause of action under the federal VPPA—the statute on which the NYVCPA is modeled.
`The title of N.Y. GBL § 673 is “Wrongful disclosure of video tape rental records,” and
`this is the focus of the statute’s consumer protection. Section 673(1) expressly authorizes a
`private right of action for “an aggrieved person” to sue a video tape service provider that has
`“knowingly disclose[d], to any person, personally identifiable information.” N.Y. GBL § 673(1).
`That section links to N.Y. GBL § 675, which is the provision specifying the right to recover
`monetary damages, costs, and reasonable attorneys’ fees. And Section 673(1) makes clear that a
`consumer can only sue a video tape service provider for wrongful disclosure of consumer PII that
`is “knowingly” made—no private right of action exists even for unintentional disclosures.
`The other subsections of N.Y. GBL § 673—subsections (2) through (5)—further address
`permitted disclosures and evidentiary rules regarding video rental PII, as well as the non-retention
`requirement. See N.Y. GBL § 673(2) (specifying safe harbors for disclosure related to
`investigatory and adjudicatory proceedings); id. at § 673(3) (specifying safe harbors for other
`disclosures with consent or for ordinary business purposes); id. at § 673(4) (specifying
`evidentiary restrictions on use of improperly disclosed PII); id. at § 673(5) (specifying non-
`retention obligation). Unlike subsection (1), subsections (2) through (5) do not provide for a
`private right of action and do not reference or link in any way to the remedy provision in Section
`675. Absent the wrongful knowing disclosure addressed in Section (1), it would make no sense
`to allow consumers to sue because their PII had been disclosed pursuant to a grand jury subpoena,
`because they authorized the disclosure of their PII to a third-party, or because a video tape service
`provider did not destroy their consumer PII within a specific time period.
`Plaintiff’s attempt to sue for wrongful retention of consumer PII is not only contrary to
`subsection 673(5)—which does not reference Section 675—but it makes no sense in light of
`Section 673(1) which only authorizes a private right of action for “willful” and “wrongful”
`disclosure of consumer PII. It is not a reasonable interpretation of the statute to conclude, as in
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`Plaintiff’s view, that the New York legislature intended to allow a consumer to sue a video tape
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`APPLE’S MOTION TO DISMISS
`Case No. 4:22-cv-02888-HSG
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`service provider for retaining consumer PII with no disclosure, but not for negligent or reckless
`disclosure of consumer PII. It also makes no sense that a video tape service provider would be
`permitted to disclose consumer PII for its ordinary business purposes, see § 673(3), but not be
`permitted to retain that same information for its ordinary business purposes.
`Additional statutory language and context support the conclusion that no private right of
`action exists for alleged wrongful retention of consumer PII. A person is authorized to sue under
`the NYVCPA only if they are “aggrieved”— the term used in both Section 673(1) and Section
`675. Section 675 permits a private right of action only for an “aggrieved consumer,” the same
`language that is used in Section 673(1). None of the other subsections—subsections (2) and (3)
`which govern the permitted disclosure of consumer PII, subsection (4) which addresses the use of
`consumer PII as evidence in a proceeding, or subsection (5) which pertains to the destruction of
`consumer PII—contain this language. An aggrieved person is someone with “legal rights that are
`adversely affected.” BLACK’S LAW DICTIONARY (11th ed. 2019) (“Aggrieved”). Thus, unless a
`person has been “adversely affected” by a violation of their legal rights, they are not “aggrieved.”
`Moreover, Section 675 allows a civil action for actual damages or $500 “in damages,” with the
`plain meaning that the person suing must have suffered damages to have a right to sue.
`“Damages” is defined as “money claimed by, or ordered to be paid to, a person as compensation
`for loss or injury.” BLACK’S LAW DICTIONARY (11th ed. 2019) (“Damages”). No “compensation
`for loss or injury” is needed as a result of alleged wrongful retention of consumer PII, absent any
`disclosure, because the PII is not available to anyone who did not already have it.
`This analysis of the statutory language is further supported by the NYVCPA’s legislative
`Sponsor Memo—which the Complaint references (¶ 23). The Sponsor Memo makes clear that
`the purpose of the NYVCPA is to prevent wrongful disclosure, and the only discussion of civil
`damages is in the context of wrongful disclosures. See Complaint Ex. A at 1, 3. Nowhere does
`the statute describe consumers as aggrieved or incurring damages as a result of retention of
`consumer PII, and the Sponsor Memo discusses the legitimate interests of video tape service
`providers in maintaining this information. Although the Complaint argues that the Sponsor
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`Memo shows an intent to close perceived gaps in the federal VPPA, Comp