[00:00:00] Speaker 00: May it please the court, Matthew Girardi for plaintiffs and plaintiff appellants. [00:00:06] Speaker 00: Quickly, before I get into this, I'd first like to reserve two minutes of my time for rebuttal. [00:00:10] Speaker 00: Keep an eye on the clock. [00:00:11] Speaker 00: But the other thing I'd like to bring to the panel's attention is that my arguments in this are going to be near completely duplicative of the Minahan versus Google case, which I am arguing immediately after this. [00:00:23] Speaker 00: So I would just ask the panel how they would like me to handle that. [00:00:27] Speaker 02: We've kept it as two separate cases because the appellees obviously are different, but why don't you just start with your argument and we will remember the things you say here for the second case and vice versa. [00:00:46] Speaker 00: Much appreciated, Your Honor. [00:00:50] Speaker 00: In both of these cases, all that the plaintiff appellants are asking for is that the plain language of the two statutes be enforced. [00:01:00] Speaker 00: The plain language of the New York VCPA provides a private right of action against any person to be found in violation of this article that is referring to Article 32. [00:01:10] Speaker 00: It is inclusive of all the sections of that article. [00:01:17] Speaker 00: Likewise, the Minnesota statute [00:01:20] Speaker 00: you know, applies the public and private entities of Section 8.31 to violations of section, violations being plural, of Section 32.325.i.02. [00:01:31] Speaker 00: They both apply statutory damages to [00:01:39] Speaker 00: That includes the retention and lack of deletion of personally identifiable video rental records. [00:01:49] Speaker 02: Just taking the New York one. [00:01:51] Speaker 02: So 673.1, the disclosure provision. [00:01:56] Speaker 02: has an express statement that there'll be liability to the aggrieved person for the relief provided in 675, and that is lacking from the retention provisions. [00:02:09] Speaker 02: So your interpretation, it seems like, makes that part superfluous, right? [00:02:16] Speaker 00: I agree that the defendant has argued that, and the lower court is focused on that. [00:02:21] Speaker 00: However, [00:02:23] Speaker 00: surplusage issue, by solving one problem, you end up creating a new one because you destroy the ability to read the statute harmoniously in that instance. [00:02:33] Speaker 00: You know, the direct reference to civil liability in the disclosure prong does not necessarily, sorry, once you read that as a requirement for a private right of action, then it makes the violation of this article language meaningless. [00:02:52] Speaker 00: So again, you basically, it creates a separate problem by solving the first. [00:02:58] Speaker 02: But it makes, I mean 675 is still doing some work, right? [00:03:06] Speaker 02: Because it tells you what the liability is, right? [00:03:08] Speaker 02: So 673-1 says, you'll be liable, and then 675 specifies actual damages, $500 in damages. [00:03:16] Speaker 02: So they're both still doing work, right? [00:03:22] Speaker 00: Of course, they're both still doing work, but I disagree that that means that you have to read that as the only possible prong of the statute for which there's a right of action. [00:03:37] Speaker 00: The private right of action in both 675 in New York and in 325.IO3 in Minnesota, it's unqualified. [00:03:49] Speaker 00: And of course, the legislature could have said, [00:03:52] Speaker 00: referred back to the disclosure prongs of either of those statutes, and they didn't do so. [00:03:57] Speaker 00: I also note for New York, because your honor specifically referenced it, if you take that reading, it really renders the retention prong entirely toothless, because if you look just below the private right of action, 675.1, at 675.2, [00:04:16] Speaker 00: That also has the same whenever there shall be a violation of this article language. [00:04:21] Speaker 00: So either both the attorney general, point two, or subsection two, excuse me, provides the attorney general with power to prosecute. [00:04:29] Speaker 00: But it has the same language. [00:04:31] Speaker 00: So either both the attorney general and a private citizen can bring actions under the retention prong, or neither can. [00:04:44] Speaker 00: Moving on, though. [00:04:46] Speaker 00: Again, I'd also point to again, the private right of action in the relevant sections is unqualified. [00:04:55] Speaker 00: And the location of it is also important. [00:04:57] Speaker 00: The reason that courts inquire into the canons of statutory construction is to resolve ambiguity. [00:05:05] Speaker 00: And in the Daniel, the Sterk, and Rodriguez cases, there was a lot of ambiguity in the VPPA. [00:05:12] Speaker 00: The federal VPPA had an internal reference to subsection D that really led nowhere, because it was the exclusionary rule of evidence, rather than the private right of action prong. [00:05:23] Speaker 00: It also had the private right of action prong in the middle of the statute, rather than at the end. [00:05:28] Speaker 00: And every court that read the VIPA that is cited by the defendants [00:05:34] Speaker 00: really focused on that order as, okay, this is the reason that here it's ambiguous and we need to delve into what the states really meant in drafting these laws. [00:05:44] Speaker 00: However, the logical inference, I'll quote Sterck specifically, if the private of action were less, quote, the natural inference would be that any violator of the prohibitions could be sued for damages. [00:05:56] Speaker 00: Rodriguez quotes Sterck for that reasoning and Daniel applied similar reasoning. [00:06:02] Speaker 02: And what do we do with the fact that the disclosure provision requires knowing disclosure? [00:06:09] Speaker 02: The retention provision doesn't. [00:06:14] Speaker 02: So on your reading, it seems like it's easier to get damages for retention than for disclosure, which seems kind of odd. [00:06:26] Speaker 00: I understand the argument. [00:06:27] Speaker 00: I would kind of raise two points in response. [00:06:30] Speaker 00: The first is that just by the plain language, the statute is what it is. [00:06:37] Speaker 00: But moving past that to address the actual point, I would say that when you think about how these statutes would be applied, I think it actually does make sense in context. [00:06:47] Speaker 00: Knowing disclosure is punished under the disclosure prong. [00:06:52] Speaker 00: You can get $500 in statutory damages or your actual damages under the civil liability prong. [00:07:01] Speaker 00: In the other instance, retention, under my reading, same thing. [00:07:06] Speaker 00: You can get $500 of actual damages. [00:07:08] Speaker 00: There's kind of a carve out for negligent or reckless disclosure. [00:07:12] Speaker 00: I know both defendants have pointed to that, where there's a no man's land. [00:07:15] Speaker 00: However, I would view it as effectively imposing negligence per se. [00:07:21] Speaker 00: I understand that's not actually what's happening here, but in a practical sense. [00:07:26] Speaker 00: If the retention was long enough, [00:07:29] Speaker 00: that it violated the retention prong, and then the information was either negligently or recklessly disclosed, they'd be liable under the retention prong. [00:07:39] Speaker 00: It basically would be negligence per se for that knowing or accidental or reckless disclosure. [00:07:46] Speaker 00: The really only further instance would be, and probably the only thing that defendant really can hang its hat on here is, [00:07:54] Speaker 00: an instance where there was a reckless or negligent disclosure prior to the retention deadline running. [00:08:02] Speaker 00: And in that instance, a plaintiff could just bring a negligence action and could try to recover their actual damages. [00:08:08] Speaker 00: So I think all the possibilities are really covered. [00:08:15] Speaker 00: Moving on, just to address some of the other points that were raised by [00:08:20] Speaker 00: both Google and Apple. [00:08:22] Speaker 00: The plaintiffs, I think, were undoubtedly aggrieved here. [00:08:27] Speaker 00: The failure to comply with a statutory directive is by definition aggrievement. [00:08:33] Speaker 00: I also think that both this court and others have recognized a private right of action just for the mere retention of protected privacy data. [00:08:45] Speaker 00: I would point to the [00:08:47] Speaker 00: instance of the Biometric Information Privacy Act in Illinois, which was analyzed by this court in Patel versus Facebook, and also by the Seventh Circuit in Fox versus Dakota, as two instances where the mere retention wasn't sufficient to provide agreement because the state of Illinois in that instance had seen fit to create a cognizable privacy interest in that instance, biometric information. [00:09:13] Speaker 02: You wanted to reserve some time? [00:09:16] Speaker 00: Yes, that's correct. [00:09:19] Speaker 02: We'll hear from Mr. Edwards. [00:09:27] Speaker 01: Thank you, Your Honors. [00:09:28] Speaker 01: May it please the Court? [00:09:29] Speaker 01: Randall Edwards for Apple Inc. [00:09:32] Speaker 01: The text, structure, context, and basic canons of statutory interpretation lead to only one reasonable interpretation of both the New York and Minnesota statutes. [00:09:44] Speaker 01: which is what Judge Gilliam found below, what Judge Gonzalez Rogers found in the Manhattan case, what this court in Rodriguez found with respect to the parallel federal VPPA upon which these two statutes were modeled, what the Sixth and Seventh Circuit also found. [00:10:02] Speaker 01: And the reason that all of those courts found there was only one reasonable interpretation and that there was no private right of action begins with [00:10:12] Speaker 01: as your honor did Judge Miller, with 673.1 in the New York statute, and 325.i.02.1 in the Minnesota statute, where the wrongful disclosure provision has an express tie, giving rise to a civil right of action to someone who is aggrieved by the wrongful disclosure. [00:10:40] Speaker 01: And then the parallel [00:10:42] Speaker 01: in the remedies provision, either 675 or 625.03, refers back to an aggrieved consumer and then explains what the remedy is. [00:10:53] Speaker 01: So in the Minnesota statute, 325.03, it provides actually two different sentences explaining what the remedy is, one referring to yet another Minnesota statute related to actual damages and the second providing some statutory liquidated [00:11:11] Speaker 01: damages amount in 675, New York does the same thing. [00:11:15] Speaker 01: Those two statutes tie together directly to explain that there's civil liability, private right of action there. [00:11:24] Speaker 01: And that's what the Sixth Circuit and Daniel held was plain, that the only provision, and again in the VPPA there, these statutes are modeled on it, the only provision that provided for civil liability was that. [00:11:38] Speaker 01: There's simply no analogous language [00:11:41] Speaker 01: for the unnecessary retention statute, and in both below the opening brief, the reply brief, and then here at argument, plaintiffs have no explanation for what that language could mean. [00:11:58] Speaker 02: That is a problem for them, but there is a problem for you too, isn't there, in the use of the phrase this article, right? [00:12:09] Speaker 02: I mean, in 675.1, which is found to be in violation of this article. [00:12:16] Speaker 02: You are effectively reading that to mean found to be in violation of those provisions of this article that provided for civil damages, right? [00:12:28] Speaker 01: So, Your Honor, I think that's exactly how the proper construction is, is that it's for violations of this article for which there's a private right of action, which have been provided in both 673.1 and 674.1 in the New York statute. [00:12:45] Speaker 01: The issue of can you read violations of this article in isolation was exactly the issue that this court and Rodriguez [00:12:57] Speaker 01: and the Six and Seven Circuits in Daniel and Sterk also addressed. [00:13:03] Speaker 01: And they all concluded, you can't read just a few words in isolation. [00:13:08] Speaker 01: Foundational statutory interpretation and canons of interpretation principles under Minnesota law, New York law, are consistent with what this court has done for federal and other statutes. [00:13:18] Speaker 01: You read the whole sentence, the whole sentence even of the remedies provisions, relates to aggrieved, [00:13:26] Speaker 01: consumers or aggrieved persons, depending on which statute we're talking about, and the civil liability, which is expressly provided for in the statute that talks about what conduct is permitted or not permitted, or required, actually. [00:13:42] Speaker 01: And so the only way to read the entirety of the sentence in 675.1 or 325.03, and holistically with the statutory structure and scheme of [00:13:56] Speaker 01: the provisions that provide for the wrongful disclosure or unnecessary retention, to read it all harmoniously together, the only reasonable conclusion is that the sub-provisions that provide for civil liability look to the remedies to specify what the remedies are, and those that don't provide for civil liability [00:14:21] Speaker 01: don't have a remedies in civil liability. [00:14:23] Speaker 02: And so then what about 675.2? [00:14:26] Speaker 02: Do you think if somebody is violating the retention provisions, could the attorney general seek an injunction to make them stop? [00:14:37] Speaker 01: So yes, I do. [00:14:38] Speaker 01: So just one threshold point. [00:14:40] Speaker 01: That only applies in New York and not in Minnesota at all. [00:14:43] Speaker 01: But for New York, I think there is a difference. [00:14:46] Speaker 01: Because looking again at the whole sentence, not just plucking out a few words, but looking at the whole sentence and looking at the entirety of the statutes for the conduct and the remedies together, it's different. [00:15:01] Speaker 01: Because there's no analogous situation or limitation on what the attorney general can do. [00:15:10] Speaker 01: as there is with the wrongful disclosure statute 673.1, 674.1, which defines what the civil liability is. [00:15:20] Speaker 01: So when you look at 675.1, it talks about remedies for civil liability for aggrieved consumers. [00:15:26] Speaker 01: 675.2, or 675.2, which talks about the attorney general's authority, there's no limitation either in that, referring back to [00:15:38] Speaker 01: aggrieved consumers, or to civil liability, or liability in that sense, or in the provisions that define the conduct in 673 and 674. [00:15:47] Speaker 01: So I do think there's that difference. [00:15:50] Speaker 02: Maybe that makes sense structurally, but it has the result that the same phrase appears in both 1 and 2, a violation of this article. [00:15:59] Speaker 02: And it means giving a different meaning to that phrase in the different sections, which we would normally try not to do. [00:16:07] Speaker 01: absolutely have to concede those words, that phrase appears in both subsections. [00:16:13] Speaker 01: And I think that when you look at the entirety of the structure language of the statutes, they do have different meanings. [00:16:24] Speaker 01: One has a more limited meaning because the rest of the sentence that it's in, in 675.1, the rest of the sentence that it's in talks about aggrieved consumers, [00:16:36] Speaker 01: and the liability, which is expressly connected to the liability specified in 673.1. [00:16:43] Speaker 01: And that's what Daniel said, is that Daniel said, again, under the analogous VPPA, but this point is the same, that the VPPA also used very broad language. [00:16:56] Speaker 01: It said this section rather than this article, because New York has broken up sale and rental records into separate sections. [00:17:04] Speaker 01: it said, Daniel said, it's still plain what the intent was of the statute in terms of providing a private right of action only for the wrongful disclosure. [00:17:15] Speaker 01: And this court in Rodriguez found that to be the critical issue. [00:17:21] Speaker 01: It also noted the structural sequencing point. [00:17:24] Speaker 01: It also noted the point that under plaintiff's interpretation, you have multiple absurd results, which under Minnesota [00:17:34] Speaker 01: and New York, both, that's another common candidate of interpretation is not to have a statutory interpretation that creates the absurd results. [00:17:43] Speaker 01: The results that there would be a private right of action for wrongful evidentiary rulings, the result that there'd be a mens rea requirement for wrongful disclosure, but no mens rea requirement for unnecessary retention, and that there would be [00:18:02] Speaker 01: a private right of action even when there's no harm, which this court in Rodriguez talked about, and Judge Posner in the Sturt case talked about as well. [00:18:11] Speaker 01: All of those unreasonable results would flow from plaintiff's interpretation, whereas Apple's interpretation, consistent with what all of the other decisions on analogous statutes have reached, can be read harmoniously, and you don't have anomalous results, [00:18:29] Speaker 01: and it's the best fit for the statute. [00:18:35] Speaker 01: If you have no further questions, thank you. [00:18:49] Speaker 00: So there's two points I'd like to make, and I'm going to try to make them both quickly. [00:18:54] Speaker 00: The first is with respect to my friends pointing out the issue of the purportedly aggrieved consumer. [00:19:00] Speaker 00: Under the plaintiff's reading of these statutes, they are aggrieved. [00:19:05] Speaker 00: I touched on that generally when I started this out. [00:19:09] Speaker 00: Because failure to comply with a statutory directive is a grievement and this court and others have recognized that retention of a, you know, protected privacy information, you know, in contradicting, you know, a requirement to delete said information is a grievement. [00:19:26] Speaker 00: And moving on now, I think I'll save the kind of parade of horribles my friend mentioned for the next time I get to do this, which is conveniently coming right up. [00:19:36] Speaker 00: I just want to talk a bit about our alternate request, which is a request to certify. [00:19:41] Speaker 00: You are over your time. [00:19:44] Speaker 00: I can save it for the next one if you'd like. [00:19:46] Speaker 00: All right. [00:19:46] Speaker 00: Thank you. [00:19:47] Speaker 00: All right. [00:19:47] Speaker 00: Thank you. [00:19:48] Speaker 02: Let's pass. [00:19:51] Speaker 02: Yeah. [00:19:51] Speaker 02: So thank both counsel and the cases submitted.