On March 8, 2018, the 9th Circuit Court of Appeals published its opinion on In re Zappos.com, Inc., Customer Data Security Breach Litigation, No. 16-16860 (9th Cir. 2018).
The case has nothing to do with shoes — except the fact that Plaintiffs were Zappos customers whose private identifying data was stolen by some thieves who hacked into Zappos’ system. Plaintiffs were some of the 24 million Zappos customers whose info got stolen.
Some of these unfortunate customers actually were victims of identity theft. Hackers used some customers’ info to commit fraudulent transactions (and may have bought some killer shoes — I don’t know).
Some other customers didn’t experience any immediate ill effects from the breach. But now that their data was in the wrong hands, they were afraid that they could be victims of identity theft at any time. Sounds like a reasonable fear, right?
These customers were tired of “waiting for the other shoe to drop,” so to speak, so they sued too. Consumers brought multiple different class action lawsuits against Zappos, which were eventually consolidated into one case to make it manageable for the courts.
But here’s the tricky part about bringing a lawsuit in federal court. You must have “standing” to do so under Article III of the U.S. Constitution.
The subject of Article III standing can go down a deep rabbit hole pretty fast. It’s not generally part of the high school civics curriculum, and it famously stumps law students. So, I’ll do my best to make it simple, and explain why the lower court treated the consumers who had suffered identity theft differently from those who were at risk for it.
Let’s say you are really into birds. You’re like Jack Black’s character — no, you’re Owen Wilson’s character — in the film “The Big Year.” You’re such a bird nerd you’ll travel around the world to catch a glimpse of a rare bird in the wild. And, the Endangered Species Act is important to you because you want to see these birds thrive for generations.
Well, one day you find out that two agencies that decide what animals get listed on the Endangered Species List decided that the government is only going to care about actions affecting species within the United States. This makes no sense to you. So along with a couple of your favorite environmental organizations, you sue the Secretary of the Interior (where the buck stops) and ask the court to order the government to change its regulation.
Eventually your case makes it all the way to the United States Supreme Court. And what does the Court say? Sorry, buddy. There was this one case a while back called Lujan v. Defenders of Wildlife, and even if you like birds more than the plaintiffs in that case liked crocodiles and elephants, you don’t have a case. You don’t have “standing” to bring a lawsuit. You have not suffered an “injury” to a “legally protected interest” that is “sufficiently concrete and particularized” that is likely to be made any better by your lawsuit. Your connection to the government’s actions and your disappointment are just too wishy-washy for this to be something the courts should care about. You’re speculating and whining. And everyone agrees. Go back to your grassroots public interest campaign.
The founders of this country were clear that certain things belong in the court system — “cases and controversies” — and certain things belong to the other branches of government, and good luck having any influence on those. If you’d like to rub salt in your wounds, read the opinion: Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
Sounds kind of harsh, right? “But we are not talking about bird watching here,” you say. “We are talking about the security and privacy of personal financial data! A bird might be starving in some other country because it has lost its habitat, but what about me, up all night worrying that a hacker might buy 100 pairs of shoes and foot me with the bill? Won’t the courts take me seriously then?”
The short answer is yes. The long answer is, plead your case carefully, and hope you live in the 9th Circuit.
The Supreme Court reiterated in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) that in order to have Article III standing you must have a concrete and particularized injury-in-fact in addition to a statutory claim. The Supreme Court was willing to allow for the possibility that you could have a “concrete,” yet “intangible” harm, but just meeting the criteria for a statutory violation isn’t enough.
So, why all this talk about birds and shoes on a site devoted to credit reporting?
Spokeo is a Fair Credit Reporting Act case.
The consumer Robins sued Spokeo because Spokeo, one of those people search websites, published on the interwebs that the consumer was a different guy, with a different marital status, age and job. Spokeo, Inc. didn’t steal Robins’ wallet or punch him in the face, but Robins was possibly harmed in intangible ways that were still “concrete.” Don’t we all want the truth told about us? Can you think of ways that an incorrect page about you online could hurt your reputation? But, the Supreme Court wouldn’t make the judgment call on whether Robins was harmed or had a “material risk” of harm beyond just being able to point at the Fair Credit Reporting Act statute to say “duh, see?” So, the Supreme Court sent the case back home to the 9th Circuit Court of Appeals.
Once Robins’ case was back in the hands of the 9th Circuit, the Appeals Court was quick to find that a false people search report was not a merely technical procedural violation of the FCRA and was sufficiently “concrete” to have Article III standing. The Appeals Court made it clear that the consumer will have to connect the dots between the violation and the harm that flowed from it. You can read the opinion here: Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017).
So now let’s get back to the Zappos, Inc. data breach case.
The 9th Circuit’s opinion is a big one for consumers because it recognizes that anxiously worrying about whether hackers will commit identity theft against you with the information they stole is a material risk of harm. “Waiting for the other shoe to drop” is therefore a sufficiently concrete injury-in-fact to have standing to sue Zappos, Inc. and allege that Zappos didn’t have good enough safeguards in place to protect your data from hackers. And, as the Appeals Court pointed out, you don’t need to make a lot of assumptions or inferences to get from “hackers stole my data” to “hackers, posing as me, on manic shopping spree.” While we don’t know for sure what a criminal will or won’t do, it’s not farfetched, and we can trace it to its root cause.
The impact of this opinion is potentially an even bigger win for consumers since data breaches are in the news all the time these days, and there are plenty of cases still pending that arose out of the large-scale data breach announced by Equifax in September 2017.
Read the opinion here: In re Zappos.com, Inc.
And if you are a victim of identity theft, go to www.identitytheft.gov and call my office for a consultation at 206-529-5195. I have successfully litigated identity theft cases and helped people clean up the mess.
How can I send documents electronically as PDF files?
This is one of the most common questions I get. It can be confusing, especially when there are so many different types of smartphones, operating systems, versions of software…..if this kind of lingo makes you nauseous, please stay with me. I’m about to make this easy (hopefully)!
What is a PDF file? PDF stands for “portable document format.” It is cool because it appears on a computer screen the way a printed-out document looks. It’s a wonderful way to store and send information. Unfortunately, it isn’t always straightforward just how you take a web page or an email and turn that into a PDF file and email it. Especially if you do everything from a smartphone or a tablet. Because the iPhone is what so many people have (me too), I’m going to start with that.
How to create a PDF from a web page on your iPhone and then email it to me from your iPhone
Let’s say you got your credit reports from www.annualcreditreport.com and you’re at that screen where you see your credit report as a web page. Now what? Well, PLEASE do not send me dozens of screen shots of your phone screen — that’s really hard for me to work with. You can actually email this as a PDF file that will print like normal. No expensive printer ink required!
I’ll demonstrate. Let’s say you have a webpage on your iPhone. At the bottom you’ll see a square shape with a little arrow going up. You might have to scroll a little to make it appear. I circled it in red so you can quickly identify it:
Got that? Now, click it. Then, you’ll see a bunch of options on what to do with it. (You won’t see that awesome picture of my cat yawning — that popped up because I was near my MacBook when I created this tutorial.)
You may have to scroll to the left until you see a “Print” option. Click on “print.” It is circled above. Then this window will come up. Instead of actually printing the document, diagonally stretch it with your two thumbs as if you were trying to zoom in:
This will cause the document to “pop out,” and form itself into something that looks like a PDF. Then you’ll see that little square shape with the up arrow again in the lower left hand corner.
Click that, and you’ll get this menu that gives you the option to email it:
Select “Mail,” and email the document to me. If you’re reading this, you probably already have my email address 😉
But I have an android phone, a laptop, or desktop computer. How do I save a webpage as a PDF so I can email it?
Don’t worry. There are many different options on how to save a webpage as a PDF file described in this article: https://www.digitaltrends.com/computing/how-to-save-a-webpage-as-a-pdf/
How do I scan something with my phone if I don’t have a scanner?
Whatever you use, here’s how you do it like a pro: (1) make sure you hold your phone level above the document, and (2) line up the four corners of the document with your camera so you don’t get a stretched-out image with a lot of space around it.
I sure hope this was helpful to you! And if all else fails and you have to print, and don’t have a printer, click here for suggestions: http://seattlefaircredit.com/how-to-print-documents-when-you-dont-have-a-printer/
How to print documents when you don’t have a printer
Can you identify with one of the following dilemmas?
“My printer isn’t working / I don’t have a printer. What do I do?”
Tip: You can go to Fedex Office Print & Ship Center where you can rent a computer work station and print documents.
Fedex Office has many such locations. I don’t have any type of pecuniary relationship with Fedex Office; I just find them to be convenient when I’m traveling and need to print something. You can find Fedex Office (formerly known as Kinkos) locations here: http://www.fedex.com/locate/index.html?locale=en_US#
And when you go to that link, filter your search results by clicking “more” and then selecting “Copy and print services.” See:
“But what if I have a LOT of documents, and it is too expensive to print them all?”
I understand. You can email them to me as PDF files! I have instructions on how to do that here: http://seattlefaircredit.com/how-to-email-documents-as-pdf-files/
So you want a house, and you’re worried about your credit.
Occasionally I get calls from well-meaning people who want “credit repair” services. Usually it is someone who has bad credit of their own doing, who has decided to finally get their act together so they can buy a house.
Maybe the family is growing (adding more humans — or more animals!). Maybe the landlord has raised the rent, and buying suddenly looks like a better deal. Maybe there’s a new job, and a little more cash flow, and the American Dream finally looks within reach.
People start looking for houses, and just set themselves up for disappointment when they learn that there’s no magic wand to make bad but accurate credit come off the credit report.
I hate to be the bearer of bad news — even though as a lawyer since 2005, I’ve had a fair amount of practice at it 🙁
Beware of credit repair — DIY is better and cheaper!
Unfortunately, there’s a lot of shysters out there with slick, aggressive ads everywhere online that sell false hope. Don’t waste your money. If you want to dispute something, my website has instructions, and so does the Federal Trade Commission.
If an item on your credit report is yours, and it is reported accurately, I can’t file a lawsuit for you to make your credit score higher.
Even if it is inaccurate, your legit dispute — even if that actually fixes it — can take 30 days, which can feel like geological time when you’re shopping in a hot and competitive housing market.
A Fair Credit Reporting Act lawsuit might be necessary to get it right.
And if your legit dispute doesn’t fix it and we do have to file a lawsuit, the gears of justice grind slowly. (With some frequency, however, I’ve seen false reporting get corrected once the lawsuit is in the works, which allows people go to house shopping before the lawsuit is resolved. But I never know whether someone will be so lucky.)
Ok, enough bad news! Here’s some good news. 🙂
Time is on your side!
If the bad stuff on your credit report is yours, it is supposed to come off in 7 years for most accounts and 10 years for bankruptcies and judgments.
Credit reporting agencies are stopping the reporting of many new judgments and tax liens (link to New York Times article).
One of the biggest killers of your credit score, late payments, is totally within your control. If things are looking up for you, you can focus on keeping current with all your accounts TODAY and the stuff from your past will gradually have less impact.
And, if stuff on your credit report is objectively false or not yours, you have rights under the Fair Credit Reporting Act, and there are lawyers who can and will litigate these cases and work hard to solve these problems for you.
Get your credit report and talk to me.
It’s always good to look at your credit reports before you start house shopping. Know the good, the bad, and the ugly, and what you qualify for. Then you won’t have that “drooling at the window of the locked candy shop” experience — at least not quite so bad.
Are you thinking about house hunting next Spring? Now is the time to look at your credit report and make sure it’s accurate. Go to www.annualcreditreport.com and get your credit reports. If there is something there that doesn’t look accurate, please contact me and we can discuss!