Jones v. Ford Motor Co.

In Jones v. Ford Motor Co., the U.S. Court of Appeals for the Ninth Circuit on October 27, 2023 affirmed the dismissal of a putative class action alleging that Ford infotainment systems automatically download & permanently store text messages & call logs from any cellphone connected to the vehicle, with no way for the owner to access or delete the data.^[1][2] The per curiam published opinion held that those allegations satisfied Article III injury-in-fact but failed the Washington Privacy Act's statutory damages requirement under RCW 9.73.060, which limits civil recovery to plaintiffs who can show injury to "his or her business, his or her person, or his or her reputation."^[3][4] Since none of the plaintiffs alleged injury to their business, person, or reputation from the vehicle's collecting & storing user data against their will, the claim failed at the pleading stage.^[5]

A companion memorandum disposition, Ritch v. American Honda Motor Co. (Nov. 7, 2023), brought by appellants Stacy Ritch & Gellert Dornay, affirmed dismissal of the parallel Honda action "for the same reasons" as Jones. The Ritch memorandum identified three related actions against Volkswagen, Toyota, & General Motors (Dornay v. Volkswagen, No. 22-35451; Goussev v. Toyota, No. 22-35454; McKee v. General Motors, No. 22-35456).^[6]

Washington residents filed five putative class actions alleging that the infotainment systems shipped by Ford, Honda, Toyota, Volkswagen, & General Motors automatically downloaded the call logs & text messages of any cellphone connected to the vehicle, retained those communications indefinitely on the vehicle's onboard memory after the phone was disconnected, & left owners with no way to access or delete the stored data.^[2][6] The plaintiffs further alleged that the stored communications could be extracted by hardware & software produced by the Berla Corporation, & that Berla's products were not generally available to the public, with sales restricted to law enforcement, the military, civil & regulatory agencies, & select private investigation service providers.^[2] The five suits sought damages under the Washington Privacy Act, RCW 9.73.060, which authorizes civil recovery only for plaintiffs who can show that a violation of the statute "has injured his or her business, his or her person, or his or her reputation."^[4] The Ninth Circuit later described the five cases as "virtually identical" in factual background & legal issues, explaining that "although the class actions were brought against separate automobile manufacturers, the factual background and legal issues are virtually identical."^[7]

Ford removed Jones to the U.S. District Court for the Western District of Washington under the Class Action Fairness Act, where Judge David G. Estudillo dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) on two alternative grounds: failure to plead a qualifying statutory injury, & the conclusion that manufacturing & selling vehicles with infotainment systems did not by itself violate the WPA.^[2][8] Judge Estudillo also presided over the parallel Honda action, Ritch v. American Honda Motor Co., No. 3:21-cv-05706-DGE (W.D. Wash.).^[9]

The Ninth Circuit panel of Judges Michael Daly Hawkins, Susan P. Graber, & M. Margaret McKeown first held that the plaintiffs had Article III standing because the alleged downloading & permanent storage of private communications "plausibly articulate an Article III injury because they claim violation of a substantive privacy right."^[3] The parallel Ritch panel anchored its identical Article III holding to In re Facebook, Inc. Internet Tracking Litigation, 956 F.3d 589, 598 (9th Cir. 2020), in which the Ninth Circuit had held that the alleged violation of a substantive privacy right is sufficient to confer standing at the pleading stage.^[7]

The court then affirmed dismissal solely on the statutory ground, holding that "an invasion of privacy, without more, is insufficient to meet the statutory injury requirements of Section 9.73.060," & that the plaintiffs had failed to allege any injury to their business, person, or reputation.^[5] The panel expressly declined to reach the district court's alternative holding on manufacturing liability, noting that "our injury determination dispositively resolves this case," & observed that the plaintiffs "were given an opportunity to amend their complaint but declined to do so."^[10] In Ritch v. American Honda Motor Co., argued in Seattle on September 14, 2023, a different Ninth Circuit panel of Judges Michael Daly Hawkins, R. Nelson, & Collins affirmed dismissal of the parallel Honda action "for the same reasons" as Jones.^[9][7] The Ritch memorandum was designated non-precedential under Ninth Circuit Rule 36-3; the panel's footnote stated that the disposition "is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3."^[9] The Ritch memorandum identified three related actions against Volkswagen, Toyota, & General Motors (Dornay v. Volkswagen, No. 22-35451; Goussev v. Toyota, No. 22-35454; McKee v. General Motors, No. 22-35456).^[6] The Ritch panel independently held that "a bare violation of the WPA is insufficient to satisfy the statutory injury requirement" & that the district court had properly dismissed the Honda plaintiffs' claim for the same reason.^[11] The Ritch panel, like the Jones panel, declined to reach the district court's alternative holding that the WPA does not extend liability to manufacturing, observing that the injury determination "dispositively resolves this case."^[11]

The panel quoted Washington precedent describing the WPA as "one of the most restrictive electronic surveillance laws ever promulgated."^[3] The ruling foreclosed civil-damages suits under RCW 9.73.060 by Washington residents who can show only that an infotainment system stored their text messages & call logs without consent, absent additional allegations of harm to their business, person, or reputation.^[5] The underlying practice of infotainment systems copying & retaining communications from connected phones remains undisturbed by the ruling. The Jones plaintiffs declined to re-plead.^[10]