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Andrews v. Sirius XM Radio Inc.

United States Court of Appeals, Ninth Circuit

August 8, 2019

James E. Andrews, on behalf of himself and all persons similarly situated, Plaintiff-Appellant,
v.
Sirius XM Radio Inc.; Does, 1 through 100, inclusive, Defendants-Appellees.

          Argued and Submitted July 10, 2019 Pasadena, California

          Appeal from the United States District Court for the Central District of California D.C. No. 5:17-cv-01724-PA-AFM Percy Anderson, District Judge, Presiding

          Jeffrey Wilens (argued), Lakeshore Law Center, Yorba Linda, California, for Plaintiff-Appellant.

          Shay Dvoretzky (argued) and Jeffrey R. Johnson, Jones Day, Washington, D.C.; Thomas Demitrack, Jones Day, Cleveland, Ohio; Lee A. Armstrong, Jones Day, New York, New York; for Defendants-Appellees.

          Before: MILAN D. SMITH, JR. and MICHELLE T. FRIEDLAND, Circuit Judges, and STANLEY A. BASTIAN, [*] District Judge.

         SUMMARY [**]

         Driver's Privacy Protection Act

         The panel affirmed the district court's grant of summary judgment in favor of the defendant in an action under the Driver's Privacy Protection Act, which prohibits the use and disclosure of personal information derived from Department of Motor Vehicles records.

         After the dealership from which plaintiff bought a used car provided his personal information to defendant Sirius XM Radio, Inc., plaintiff received unsolicited advertisements asking him to renew his radio subscription. The panel held that the DPPA does not apply where the source of personal information is a driver's license in the possession of its owner, rather than a state Department of Motor Vehicles. The panel therefore affirmed the district court's grant of summary judgment.

         The panel further held that the district court did not abuse its discretion in denying plaintiff leave to amend his complaint to add a claim under the Computer Fraud and Abuse Act. The panel held that plaintiff could not have brought a viable CFAA claim because he could not plausibly allege a qualifying loss.

          OPINION

          M. SMITH, CIRCUIT JUDGE.

         "WE WANT YOU BACK!" Many of us have received, through phone calls, emails, texts, and the post, the plaintive entreaties of companies with whom we have decided to cease doing business, seeking recommencement of our patronage. Such was the experience of James Andrews, who, after the dealership from which he bought a used car provided his personal information to Sirius XM Radio Inc. (Sirius XM), received unsolicited advertisements asking him to renew his radio subscription.

         The primary question before us is whether Sirius XM's use of personal information derived from Andrews's driver's license violated the Driver's Privacy Protection Act of 1994 (DPPA), 18 U.S.C. §§ 2721-2725. Because we conclude that the DPPA does not apply where the source of personal information is a driver's license in the possession of its owner, rather than a state Department of Motor Vehicles (DMV), we affirm the district court's grant of summary judgment in favor of Sirius XM. We also affirm the district court's denial of Andrews's motion to amend his complaint to add a claim under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Factual Background

         On January 14, 2017, Andrews purchased a pre-owned 2012 Chevy Equinox from Auto Source, a small used car lot in Banning, California. He presented the dealership with his California driver's license, from which it obtained his name and PO Box address. He also filled out a California DMV Form 262-"Vehicle/Vessel Transfer and Reassignment Form"-a multipurpose form that serves as an odometer disclosure, bill of sale, and power of attorney. On the Form 262, Andrews provided his telephone number, street address, PO Box, and name. Auto Source input this information into its dealer management system (DMS), which ran on a database platform operated by a third party, AutoManager.

         Andrews's Equinox came equipped with Sirius XM radio, a subscription-based satellite radio service. Gail Berger, Sirius XM's Vice President of Auto Remarketing, attested that her company has agreements with thousands of automotive dealerships across the country pursuant to which Sirius XM offers trial subscriptions for pre-owned vehicles and, in return, dealers provide Sirius XM with the names and addresses of customers who purchase or lease XM-equipped vehicles. According to Berger, Auto Source enrolled in Sirius XM's pre-owned program in 2015. The terms of the agreement provided that Sirius XM "requires the use of data that exists in [Auto Source's DMS], including customer data to activate [its] customers' SiriusXM Trial Service and to communicate with customers regarding their Trial Subscriptions and options to extend their SiriusXM services following the Trial Subscriptions." It also permitted Auto Source's DMS provider, AutoManager, "to extract and share [its] DMS data with SiriusXM." A separate agreement between Sirius XM and AutoManager specified that this information included "Customer Data."

         Berger stated that, following Andrews's purchase, AutoManager provided Sirius XM with a record of the sale. This electronic record included his name and street address. According to a Sirius XM manager, however, Andrews's PO Box was not provided by AutoManager; instead, Sirius XM obtained that information through a separate contractor that used the U.S. Postal Service's National Change of Address database. Andrews asserted that he gave neither Auto Source nor anyone else permission to share his personal information with Sirius XM.

         Within days of Andrews's purchase, the deluge began. Sirius XM sent various letters to Andrews's PO Box between January and August 2017, imploring him-"We Want You Back!"-to resume his Sirius XM service after the subscription included with his car purchase ended. Sirius XM also telephoned him for the same purpose.

         II. Procedural Background

         On August 24, 2017, Andrews filed a putative class action complaint in the district court, alleging violations of the DPPA and seeking an injunction and statutory damages of $2, 500 for each violation.

         In his complaint, Andrews-apparently unaware of the agreements between Auto Source, AutoManager, and Sirius XM pursuant to which his personal information was shared-alleged that Sirius XM "obtained [his] name and address, as well as his phone number, from the motor vehicle records, most likely the registration documents submitted to the DMV after he purchased the car." Prior to filing its motion for summary judgment, Sirius XM's counsel explained to Andrews's counsel that, contrary to Andrews's allegations, it had obtained his personal information not from the DMV, but instead from Auto Source and the Change of Address ...


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