[co-author: Stephanie Kozol]*
In an unusual move, attorneys general (AG) from 30 states and the District of Columbia filed a bipartisan amicus brief in the Ninth Circuit supporting efforts to revive a proposed class action against payment processor Shopify. The amici back plaintiff-appellant Brandon Briskin in his effort to convince the Ninth Circuit to overturn en banc a three-judge panel decision affirming the dismissal of his data privacy suit for lack of personal jurisdiction.
Briskin filed a proposed class action against Shopify alleging that the online company extracted his sensitive personal and financial data without his consent when he made a purchase from a California merchant through Shopify’s platforms, in violation of California law. Briskin’s complaint included claims under California’s Invasion of Privacy Act, the Computer Data Access and Fraud Act, and the Unfair Competition Law, among others. The appellate panel affirmed the district court’s dismissal for lack of jurisdiction, explaining that even though Shopify “knowingly profit[ed] from consumers in [California],” that conduct alone was not sufficient to show that Shopify expressly aimed its conduct toward California, particularly when there were no allegations that Shopify (1) “alter[ed] its data collection activities based on the location of a given online purchaser” or (2) prioritized or specifically targeted California customers.
Why It Matters
The AGs argue in their brief that the Ninth Circuit panel decision “erroneously grants websites special treatment” by requiring proof of conduct targeted at a particular state “in differential excess” from conduct aimed at other states. Mississippi AG Lynn Fitch summarized the lower court’s holding as “essentially f[inding] that because online companies do business everywhere, they can be held accountable nowhere.”
The case could potentially have a significant impact on a wide range of litigation against online retailers, giving them greater defenses against being sued outside their home states. However, even if the panel decision stands, Shopify does not mean that online retailers may evade personal jurisdiction in every court. Like other companies, they remain subject to general personal jurisdiction in their home states. Additionally, state AGs have recently started testing whether they may file actions in a different state with that state’s AG as a co-plaintiff. If Shopify stands, we expect that state AGs will continue testing whether they can bring suits outside of their own states’ borders to reach online retailers.
*Senior Government Relations Manager
