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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`MAR 13 2024
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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` Plaintiffs-Appellants,
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`LUCILA BAPTISTE; FREDERICK
`RAMOS,
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` v.
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`APPLE INC.,
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`No. 23-15392
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`D.C. No. 4:22-cv-02888-HSG
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` Defendant-Appellee.
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`Appeal from the United States District Court
`for the Northern District of California
`Haywood S. Gilliam, Jr., District Judge, Presiding
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` Plaintiffs-Appellants,
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`BURKE MINAHAN; et al.,
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` v.
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`GOOGLE, LLC,
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` Defendant-Appellee.
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`No. 23-15775
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`D.C. No. 4:22-cv-05652-YGR
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`MEMORANDUM*
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`Appeal from the United States District Court
`for the Northern District of California
`Yvonne Gonzalez Rogers, District Judge, Presiding
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` This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`Argued and Submitted February 14, 2024
`San Francisco, California
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`Before: MILLER, BADE, and VANDYKE, Circuit Judges.
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`Plaintiffs appeal from the dismissal of their complaints in two putative class
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`actions alleging that Apple, Inc. (in No. 23-15392) and Google, LLC (in No. 23-
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`15775) violated New York and Minnesota privacy statutes through the unlawful
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`retention of personally identifiable information. Plaintiffs are consumers who
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`reside in New York or Minnesota and rented videos from defendants. They allege
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`that defendants collected their information and continue to retain it. They argue
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`that defendants’ retention of that information violates the New York Video
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`Consumer Privacy Act and the Minnesota Video Privacy Law and that those
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`statutes provide a private right of action for the wrongful retention of personal
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`information. We have jurisdiction under 28 U.S.C. § 1291, and we review
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`dismissals under Rule 12(b)(6) de novo. Wilson v. Craver, 994 F.3d 1085, 1089
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`(9th Cir. 2021). We affirm.
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`When construing state statutes, we apply state rules of statutory
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`interpretation. See Association des Eleveurs de Canards et d’Oies du Quebec v.
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`Harris, 729 F.3d 937, 945 (9th Cir. 2013). Under New York law, “a court’s
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`primary consideration is to ascertain and give effect to the intention of the
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`Legislature.” Walsh v. New York State Comptroller, 144 N.E.3d 953, 955 (N.Y.
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`2
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`2019) (citation omitted). If the text is unambiguous, the court must give effect to
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`its plain meaning. Id. The same is true in Minnesota. See Swanson v. Brewster, 784
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`N.W.2d 264, 274 (Minn. 2010).
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`The New York and Minnesota statutes prohibit the “wrongful disclosure of
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`video tape rental records.” N.Y. Gen. Bus. Law § 673; see Minn. Stat. § 325I.02.
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`The statutes also contain express remedial provisions that allow consumers to sue
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`any video provider who “knowingly discloses, to any person, personally
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`identifiable information.” N.Y. Gen. Bus. Law § 673(1); Minn. Stat. § 325I.02(1).
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`Section 675 of New York’s statute, titled “Civil liability,” states: “Any person
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`found to be in violation of this article shall be liable to the aggrieved consumer for
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`all actual damages sustained by such consumer as a result of the violation.” N.Y.
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`Gen. Bus. Law § 675(1). Minnesota’s statute similarly states: “The public and
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`private remedies in section 8.31 [listing legal violations which the attorney general
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`must investigate] apply to violations of section 325I.02.” Minn. Stat. § 325I.03.
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`Both statutes also contain, in the same sections as the nondisclosure
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`provisions, non-retention provisions. These state that a person subject to the
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`nondisclosure section “shall destroy personally identifiable information as soon as
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`practicable, but no later than one year from the date the information is no longer
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`necessary for the purpose for which it was collected.” N.Y. Gen. Bus. Law
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`§ 673(5); Minn. Stat. § 325I.02(6).
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`3
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`Plaintiffs seize on the New York remedial provision, which imposes liability
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`on individuals “found to be in violation of this article,” N.Y. Gen. Bus. Law
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`§ 675(1) (emphasis added), and analogous language in the Minnesota statute
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`stating that remedies are available to those aggrieved by “violations of section
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`325I.02,” Minn. Stat. § 325I.03 (emphasis added). They claim that because the
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`non-retention provisions fall within “this article” under the New York statute and
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`within “section 325I.02” under the Minnesota statute, the remedial provisions
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`create a private right of action for violations of the non-retention provisions.
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`That argument overlooks that both non-disclosure provisions directly
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`reference separate statutory provisions that allow for civil liability and the recovery
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`of monetary damages. See N.Y. Gen. Bus. Law § 673(1) (“A video tape service
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`provider who knowingly discloses . . . personally identifiable information . . . shall
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`be liable to the aggrieved person for the relief provided in section six hundred
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`seventy-five of this article.”); Minn. Stat. § 325I.02(1) (“[A] videotape service
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`provider or videotape seller who knowingly discloses personally identifiable
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`information . . . is liable to the consumer for the relief provided in section
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`325I.03.”). But the non-retention provisions of each statute are different: They lack
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`language that links them to the civil liability provisions. See N.Y. Gen. Bus. Law
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`§ 673(5); Minn. Stat. § 325I.02(6).
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`This absence is meaningful because reading the non-retention provisions to
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`4
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`create a private right of action would deprive the liability language in the
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`wrongful-disclosure provisions of any purpose. We thus decline to adopt plaintiffs’
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`interpretation because “[i]t is well settled that . . . [courts] must assume that the
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`Legislature did not deliberately place a phrase in the statute which was intended to
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`serve no purpose.” Rodriguez v. Perales, 657 N.E.2d 247, 249 (N.Y. 1995)
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`(citation omitted); see Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.
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`1999) (“[N]o word, phrase, or sentence should be deemed superfluous, void, or
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`insignificant” when interpreting a statute.).
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`Plaintiffs respond that adopting this interpretation of the statute creates
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`another surplusage problem: It leaves the words “this article,” N.Y. Gen. Bus. Law
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`§ 675, and “section 325I.02,” Minn. Stat. § 325.03, without meaning. But
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`“[p]articular phrases must be construed in light of the overall purpose and structure
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`of the whole statutory scheme.” United States v. Neal, 776 F.3d 645, 652 (9th Cir.
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`2015) (citation omitted). And nothing in the statutory texts suggests that the state
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`legislatures intended to create a private right of action for retention. We therefore
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`decline to place undue weight on the phrases plaintiffs highlight and instead
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`employ “accepted principles of statutory construction to interpret . . . imperfectly
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`drafted statute[s].” Rodriguez v. Sony Comput. Ent. Am., LLC, 801 F.3d 1045, 1051
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`(9th Cir. 2015).
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`Plaintiffs also point to the federal Video Privacy Protection Act, noting that
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`5
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`its remedial provision, 18 U.S.C. § 2710(c), appears directly after the
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`nondisclosure provision, 18 U.S.C. § 2710(b), but before its non-retention
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`provision, 18 U.S.C. § 2710(e). In New York and Minnesota, however, the
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`remedial provision appears after all provisions that lay out obligations, including
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`the non-retention provisions. Whatever structural inference might be drawn from
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`comparing the state and federal statutes is insufficient to overcome the textual
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`reality that the non-retention provisions of these statutes do not contain liability
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`language.
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`Finally, we decline plaintiffs’ suggestion that we certify this question to the
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`highest courts of New York and Minnesota. “Certification is not to be ordered
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`lightly.” Bliss Sequoia Ins. & Risk Advisors, Inc. v. Allied Prop. & Cas. Ins. Co.,
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`52 F.4th 417, 423 (9th Cir. 2022). As we have explained, this case presents a
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`straightforward issue of statutory interpretation. It does not warrant protracted
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`litigation in state court.
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`Google’s motion for judicial notice (No. 23-15775 Dkt. No. 23) is
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`DENIED.
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`AFFIRMED.
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`6
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