[00:00:04] Speaker 01: Mr. Girardi. [00:00:06] Speaker 01: I guess, again, I'd like to reserve two minutes for rebuttal. [00:00:10] Speaker 01: May it please the court, Matthew Girardi, for our plaintiff appellant again. [00:00:15] Speaker 01: So building off where I just left off, it is our position that these questions should be certified if the court does not come out on their side. [00:00:25] Speaker 00: Did you request certification in the district court? [00:00:27] Speaker 01: I don't believe the District Court can certify. [00:00:30] Speaker 00: Is that because of the way the certification statute is in New York? [00:00:36] Speaker 01: Yes, I have it somewhere in here, but effectively a Court of Appeals can certify, but the District Court cannot. [00:00:45] Speaker 00: This was removed to federal court, right? [00:00:49] Speaker 00: Correct. [00:00:50] Speaker 00: But from California State Court. [00:00:52] Speaker 00: Yes. [00:00:54] Speaker 00: If you wanted the New York or the Minnesota courts to consider the questions of New York or Minnesota law, why didn't you file in those states? [00:01:03] Speaker 01: Well, in New York, this would never end up in front of a court that would create any binding precedent on the law, and that's another actually factor that weighs in favor of certification. [00:01:14] Speaker 00: Why is that? [00:01:17] Speaker 01: Well, in New York, there is a procedural prohibition, an aggregation of statutory damages in the class action context. [00:01:25] Speaker 01: So if a plaintiff who was harmed under the retention prong attempted to bring case in New York, they would just end up in small claims court. [00:01:34] Speaker 01: There's really conceivably no way, particularly in New York, that this would end up in front of a New York court that would create any sort of precedent on this. [00:01:42] Speaker 00: In Minnesota? [00:01:43] Speaker 01: Minnesota, again, it's pretty unlikely any sort of putative class action would be removed, again, to the federal courts, where eventually could, I guess, get certified back. [00:01:59] Speaker 01: But again, we're talking about, you know, low dollar damages amounts here. [00:02:05] Speaker 01: In many instances for retention are almost definitely going to be less than $500 on an individual plaintiff basis. [00:02:11] Speaker 01: But when aggregated, because of the widespread nature, it's highly likely they'll satisfy Cavendish jurisdiction, be removed, and then never make it to Minnesota or New York Supreme Court. [00:02:23] Speaker 01: Definitely not New York. [00:02:25] Speaker 01: And now quickly turning to the parade of horribles, I guess I will use the term. [00:02:31] Speaker 01: I did, I think, already address the [00:02:34] Speaker 01: kind of differing mens rea requirements. [00:02:37] Speaker 01: So I'm going to stand on that answer for that. [00:02:39] Speaker 01: But I'd like to turn to the issue that judges will be purportedly found liable for admitting evidence that was put in in contradiction to these statutes. [00:02:49] Speaker 01: I think that's really a stretch for a few reasons. [00:02:54] Speaker 01: First off, [00:02:57] Speaker 01: It's pretty clear that in both New York and Minnesota, this is an exclusionary rule of evidence. [00:03:03] Speaker 01: Someone's not aggrieved by noncompliance with an exclusionary rule of evidence. [00:03:06] Speaker 01: The proper remedy there is to A, object to its inclusion. [00:03:11] Speaker 01: at the time it's introduced, or B, if the judge introduces it over your objection, you're totally free to appeal if you end up losing your case because of it. [00:03:21] Speaker 00: And then even- Those are reasons that it doesn't make sense to provide civil damages for the wrongful admission of evidence. [00:03:28] Speaker 00: But if we read the statute your way, the statute does, in fact, provide civil damages for wrongful admission of evidence, right? [00:03:36] Speaker 01: Well, no, because of the agreement. [00:03:38] Speaker 01: thing that my opponent pointed to. [00:03:40] Speaker 01: You're not aggrieved by wrongful inclusion of evidence. [00:03:42] Speaker 01: You could, I guess, theoretically lose a case over it. [00:03:45] Speaker 01: But again, that leads nicely into my second point, which is even if you were somehow arguably aggrieved, judges have near complete immunity for decisions made on the bench. [00:03:55] Speaker 01: And I think judicial immunity would most certainly apply there. [00:03:58] Speaker 00: Sure, but I don't think anyone questions that. [00:04:02] Speaker 00: The point is, why should we read the statute just because immunity comes in and prevents the absurd consequence from playing out? [00:04:13] Speaker 00: Why should we think that the legislature wrote something that provides for that consequence? [00:04:20] Speaker 01: Again, I would disagree with Your Honor's contention that it provides for that consequence, because you have to be aggrieved. [00:04:25] Speaker 01: And again, I don't think admitting something into evidence would be aggrieving someone. [00:04:32] Speaker 01: Certainly, if it was wrongfully obtained, then they could also go after the person who wrongfully obtained it, probably under the statute as well. [00:04:38] Speaker 01: I doubt they would be attempting to sue a judge for their $500. [00:04:42] Speaker 01: So that's a parade of horribles. [00:04:46] Speaker 01: We already covered the punishing [00:04:50] Speaker 01: pretension more than actual disclosure. [00:04:52] Speaker 01: It doesn't. [00:04:55] Speaker 01: So I think I can save the rest of my time for rebuttal unless any of you have any additional questions. [00:05:07] Speaker 00: Right. [00:05:07] Speaker 00: Mr. Herr. [00:05:10] Speaker 02: Good morning, Your Honors. [00:05:11] Speaker 02: Ben Herr for Google. [00:05:13] Speaker 02: May it please the Court. [00:05:14] Speaker 02: Uh, Your Honors, let me start with the response to the Parade of Horribles, and in particular this argument that one is not aggrieved by admission of this information into evidence. [00:05:27] Speaker 02: As Your Honor has said, this would suggest that there would be a private right of action for doing so, and certainly I could see a plaintiff alleging that they were aggrieved by that admission of evidence. [00:05:39] Speaker 02: Your Honor, [00:05:41] Speaker 02: The Apples Council addressed some of the other issues relating to mens rea, relating to the superfluous nature of plaintiff's argument as it relates to the retention provision. [00:05:53] Speaker 02: I'm just going to focus on a couple of additional points so as not to redo his argument. [00:06:00] Speaker 02: Your Honor, the legislative history of the NYVCPA strongly supports Apples and Google's interpretation here. [00:06:09] Speaker 02: That legislative history in New York clearly demonstrates that what the New York legislature cared about was disclosure of information. [00:06:17] Speaker 02: The whole point was to penalize disclosure. [00:06:21] Speaker 02: When the legislative history discusses retention, it discusses it as allowing businesses to do what they must do for normal business operations. [00:06:32] Speaker 02: It does not discuss what remedies should be available for wrongful retention. [00:06:40] Speaker 02: Your Honor, as it relates to certification, and Judge Miller, your question about Minnesota, there is no question that a class action could be brought in Minnesota. [00:06:53] Speaker 02: by Minnesota plaintiffs against the Minnesota defendant, and that issue could be adjudicated by the Minnesota Supreme Court. [00:07:02] Speaker 02: But when this court evaluates when to certify an issue for the high courts of other states, it considers whether it is an issue of broad application with wide policy implications. [00:07:15] Speaker 02: And, Your Honor, that's simply not the case here. [00:07:18] Speaker 02: We don't have any judicial decision suggesting that this could be an issue that might be of interest to those states. [00:07:27] Speaker 02: You don't see the attorney general of New York, for example, bringing in action in the last 30 years. [00:07:34] Speaker 02: This is just simply a matter of statutory interpretation that this court is plainly qualified to conduct. [00:07:42] Speaker 02: Your Honor, Google has the alternative argument that the choice of law provision would require California law to apply in the event that the court were to find that the retention provision of the NVPL or NYBCPA provides for a private right of action. [00:08:00] Speaker 02: I'm happy to answer any questions about that or address it if this court is inclined. [00:08:08] Speaker 00: Looks like there are no further questions. [00:08:11] Speaker 00: Thank you, Your Honors. [00:08:12] Speaker 00: Thank you. [00:08:22] Speaker 01: All right. [00:08:23] Speaker 01: I think I can wrap this up fairly quickly, Your Honors. [00:08:26] Speaker 01: So just very rapidly with respect to choice of law, I would say that that question is inherently going to rise and fall with the determination of whether or not there's a private right of action. [00:08:36] Speaker 01: If there is, in fact, a private right of action for retention violations, then it would seem fairly clear that both Minnesota and New York really intended to carve this out as a protected privacy interest. [00:08:48] Speaker 01: An application of California law would contravene that. [00:08:52] Speaker 01: So, to the extent the panel finds that argument all persuasive, again, I think it is kind of tied to everything else. [00:09:01] Speaker 01: The other point I'd like to quickly make is with respect to legislative intent, particularly in New York. [00:09:07] Speaker 01: Because in section 671, where the New York legislature put in its declaration of legislative findings and intent, they did recognize not only a privacy interest in the risk of public dissemination of personally identifiable video rental records, [00:09:21] Speaker 01: but also in the mere accumulation of the data. [00:09:24] Speaker 01: And I'm going to quote from the back half of that section, the large amounts of personally identifiable information collected by such establishments and the possibility of public dissemination of that information pose a serious threat to the personal privacy of New Yorkers and is therefore a matter of state concern. [00:09:41] Speaker 01: The inclusion of the word and there leads to a pretty inescapable conclusion. [00:09:45] Speaker 01: It's not one or the other that are a matter of state concern and that pose a serious threat to the privacy of New Yorkers. [00:09:51] Speaker 01: It is both. [00:09:52] Speaker 01: And I will end with that. [00:09:54] Speaker 00: Thank you very much. [00:09:54] Speaker 00: We thank both counsel for their arguments. [00:09:56] Speaker 00: The case is submitted and the court is adjourned for the day.