In re Zappos.Com, Inc., Customer Data Security Breach Litigation,
Zappos.com., Inc., Defendant-Appellee. Theresa Stevens; Kristin O'Brien; Terri Wadsworth; Dahlia Habashy; Patti Hasner; Shari Simon; Stephanie Priera; Kathryn Vorhoff; Denise Relethford; Robert Ree, Plaintiffs-Appellants,
and Submitted December 5, 2017 San Francisco, California
from the United States District Court for the District of
Nevada Robert Clive Jones, Senior District Judge, Presiding
Douglas Gregory Blankinship (argued), Finkelstein Blankinship
Frei-Pearson and Garber LLP, White Plains, New York; David C.
O'Mara, The O'Mara Law Firm P.C., Reno, Nevada; Ben
Barnow, Barnow and Associates P.C., Chicago, Illinois;
Richard L. Coffman, The Coffman Law Firm, Beaumont, Texas;
Marc L. Godino, Glancy Binkow & Goldberg LLP, Los
Angeles, California; for Plaintiffs-Appellants.
Stephen J. Newman (argued), David W. Moon, Brian C. Frontino,
and Julia B. Strickland, Stroock & Stroock & Lavan
LLP, Los Angeles, California; Robert McCoy, Kaempfer Crowell,
Las Vegas, Nevada; for Defendant-Appellee.
Before: John B. Owens and Michelle T. Friedland, Circuit
Judges, and Elaine E. Bucklo, [*] District Judge.
AND AMENDED OPINION
panel amended the opinion filed on March 8, 2018; and
reversed the district court's dismissal, for lack of
Article III standing, of plaintiffs' claims alleging that
they were harmed by hacking of their accounts at the online
panel held that under Krottner v. Starbucks Corp.,
628 F.3d 1139 (9th Cir. 2010), plaintiffs sufficiently
alleged standing based on the risk of identity theft. The
panel rejected Zappos's argument that Krottner
was no longer good law after Clapper v. Amnesty
International USA, 568 U.S. 398 (2013). The panel held
that plaintiffs sufficiently alleged an injury in fact under
Krottner, based on a substantial risk that the
Zappos hackers will commit identity fraud or identity theft.
The panel further held that plaintiffs sufficiently alleged
that the risk of future harm they faced was "fairly
traceable" to the conduct being challenged; and the risk
from the injury of identity theft was also redressable by
relief that could be obtained through this litigation.
panel addressed an issue raised by sealed briefing in a
concurrently filed memorandum disposition.
opinion filed on March 8, 2018, and appearing at 884 F.3d
893, is amended as follows. On page 899:
<Zappos is mistaken . . . the present> with <Zappos
initially contended on appeal that the relevant time at which
to assess standing was the present. But it could not offer
any support for that contention. After our opinion was
initially filed, Zappos sought rehearing on this issue,
urging us to read Rockwell International Corp. v. United
States, 549 U.S. 457, 473 (2007), and Northstar
Financial Advisors Inc. v. Schwab Investments, 779 F.3d
1036, 1044 (9th Cir. 2015), to require that we assess
standing at the time Plaintiffs filed their operative Third
Amended Complaint, rather than their original Complaints. But
whether we look at the original Complaints or Plaintiffs'
Third Amended Complaint, the allegations about the increased
risk of harm Plaintiffs face are relevantly the same-in the
Complaints, Plaintiffs allege that the Zappos data breach
places them at imminent risk of identity theft. Zappos argues
that this allegation is implausible, but it does so by
relying on facts outside the Complaints (or contentions about
the absence of certain facts), which makes its argument one
that may be appropriate for summary judgment but not one that
may support a facial challenge to standing at the motion to
<rather than their original Complaints.> in the above
replacement text, insert a footnote <Zappos's reliance
on these cases is also unconvincing, as these cases do not
actually address whether standing is measured at the time of
an initial complaint or at the time of an amended complaint,
as opposed to whether the allegations in an amended complaint
may sometimes be considered in evaluating whether there was
standing at the time the case was originally filed or whether
an amended complaint may be considered a supplemental
pleading under Federal Rule of Civil Procedure 15(d).>.
<imminent risk of identity theft.> in the above
replacement text, insert a footnote <Plaintiff Robert Ree
does not clearly allege a risk of future identity theft. But
even assuming Ree would not have had standing on his own
based on his original Complaint, only one Plaintiff needs to
have standing for a class action to proceed. See Bates v.
United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.
2007) (en banc).>.
current footnote 11, delete <; Mollan, 22 U.S. at
these amendments, the panel has unanimously voted to deny
appellee's petition for rehearing. Judge Owens and Judge
Friedland have voted to deny the petition for rehearing en
banc. Judge Bucklo recommends denial of the petition for
rehearing en banc. The full court has been advised of the
petition for rehearing en banc, and no judge has requested a
vote on whether to rehear the matter en banc. Fed. R. App. P.
petitions for rehearing and rehearing en banc are
DENIED. No further petitions shall be
FRIEDLAND, Circuit Judge:
January 2012, hackers breached the servers of online retailer
Zappos.com, Inc. ("Zappos") and allegedly stole the
names, account numbers, passwords, email addresses, billing
and shipping addresses, telephone numbers, and credit and
debit card information of more than 24 million Zappos
customers. Several of those customers filed putative class
actions in federal courts across the country, asserting that
Zappos had not adequately protected their personal
information. Their lawsuits were consolidated for pretrial
some of the plaintiffs alleged that the hackers used stolen
information about them to conduct subsequent financial
transactions, the plaintiffs who are the focus of this appeal
("Plaintiffs") did not. This appeal concerns claims
based on the hacking incident itself, not any subsequent
district court dismissed Plaintiffs' claims for lack of
Article III standing. In this appeal, Plaintiffs contend that
the district court erred in doing so, and they press several
potential bases for standing, ...