The Ninth Circuit joined the California Court of Appeals in cutting down plaintiffs’ ability to sue companies for violations of California’s “Shine the Light” law, Cal. Civ. Code 1789.83(a), by holding that plaintiffs must (1) make requests to companies to have information about their marketing practices disclosed and (2) demonstrate injury in fact. King v. Conde Nast Publ’ns, No. 12-52709 (9th Cir. Feb. 18, 2014) and Miller v. Hearst Commc’ns Inc., No. 12-52731 (9th Cir. Feb. 18, 2014).
Plaintiffs’ attorneys had zeroed in on the Shine the Light law (“STL”), in part, because they believed that it allowed for “statutory standing”— meaning that plaintiffs could bring suit for a violation of the statute even if they had suffered no injury. Last year, the California Court of Appeals in Boorstein v. CBS Interactive, Inc., 165 Cal. Rptr. 3d 669, 675 (Cal. Ct. App. 2013) rejected that argument and significantly limited plaintiffs’ ability to do so by requiring plaintiffs to “first have made, or attempted to make, a disclosure request in order to have standing under the STL,” which plaintiffs did not do in Boorstein, King, or Miller. Id. at 673. Likewise, the Boorstein court held unfair competition law requires plaintiffs to allege “injury in fact,” which plaintiffs had not done in any of the three cases. The Ninth Circuit found no reason to depart from Boorstein and affirmed dismissal of all claims.