Opinion
CV-19-04849-PHX-GMS
12-01-2021
The Reynolds and Reynolds Company, a corporation, Plaintiff, v. Mark Brnovich, et al., Defendants, and Arizona Automobile Dealers Association, Intervenor Defendant.
ORDER
G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE
Before the Court is The Reynolds and Reynolds Company's (“Plaintiff”) Motion for Certification Pursuant to 28 U.S.C. § 1292(b) (Doc. 133). Plaintiff wishes to appeal the Court's dismissal of its CFAA and vagueness claims. Id. For the following reasons, Plaintiff's motion is denied.
BACKGROUND
On May 20, 2020, the Court granted in part and denied in part two motions to dismiss brought by the Defendants and Intervenor-Defendant. (Doc. 91.) Subsequently, the Court denied Plaintiff's motion for preliminary injunction which sought to enjoin enforcement of the Dealer Data Security Law (“the Dealer Law”) passed by the Arizona Legislature. A.R.S. §§ 28-4651-4655. The facts and procedural history are known to the parties and summarized in the Court's Order. (Doc. 127.) Plaintiff filed a Notice of Appeal, alerting the Court that it was appealing, pursuant to 28 U.S.C. § 1292(a)(1) and pendant appellate jurisdiction, the denial of Plaintiff's Motion for Preliminary Injunction and the order granting in part and denying in part Defendants' motions to dismiss. (Doc. 129 at 2.) Plaintiff then filed the instant Motion for Certification, requesting certification of the order on Defendants' Motion to Dismiss for appeal to the Ninth Circuit. (Doc. 133.) The Court deferred ruling on Plaintiff's Motion for Certification, pending a ruling from the Ninth Circuit on whether it would exercise pendent jurisdiction over the Court's order on Defendants' Motion to Dismiss. (Doc. 141.) On October 25, 2021, the Ninth Circuit declined to exercise pendent jurisdiction. (Doc. 158.)
DISCUSSION
I. Legal Standard
Ordinarily “parties may appeal only from orders which ‘end[] the litigation on the merits and leave[] nothing for the court to do but execute the judgment.'” Couch v. Telescope, Inc., 611 F.3d 629, 632 (9th Cir. 2010) (quoting Romoland Sch. Dist. v. Inland Empire Energy Ctr., 548 F.3d 738, 747 (9th Cir. 2008)); 28 U.S.C. § 1291. Under a narrow exception to the final judgment rule, a district court may certify an interlocutory order for appeal if three requirements are met: (1) the order “involves a controlling question of law, ” (2) “as to which there is substantial ground for difference of opinion, ” and (3) “that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
A substantial ground for difference of opinion exists where “the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.” Couch, 611 F.3d at 633 (quoting 3 Fed. Proc., L.Ed. § 3:212 (2010)); cf. Facebook, Inc. v. Namecheap, Inc., No. CV-20-470-PHX-GMS, 2021 WL 961771, at *2 (D. Ariz. Mar. 15, 2021) (finding substantial ground for difference of opinion when “[t]he Ninth Circuit has not spoken on this question, and district courts within the Ninth Circuit, and in other circuits, are split on the issue”). “[J]ust because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal.” Couch, 611 F.3d at 633.
II. Analysis
First, the Court's holding that the Computer Fraud and Abuse Act (“CFAA”) does not preempt the Dealer Law does not present a substantial ground for difference of opinion. Plaintiff's cases stand for the proposition that users whose access to a computer system is either revoked or never granted in the first instance act “without authorization” if they subsequently attempt to access the system. See 18 U.S.C. § 1030(a); Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1068 (9th Cir. 2016); United States v. Nosal, 844 F.3d 1024, 1038 (9th Cir. 2016); In re Dealer Mgmt. Sys. Antitrust Litig., 362 F.Supp.3d 558, 570 (N.D. Ill. 2019). But that issue is distinct from whether the CFAA facially preempts a state law that authorizes access. Plaintiff has cited no authority indicating that the CFAA has ever preempted a state law, or that a state law can never provide the requisite authorization under the CFAA. Therefore, Plaintiff has not established a substantial ground for difference of opinion. See Union Cnty. v. Piper Jaffray & Co., 525 F.3d 643, 647 (8th Cir. 2008) (“‘While identification of a sufficient number of conflicting and contradictory opinions would provide substantial ground for disagreement,' the County offered no such Iowa opinions, statutes or rules, and ‘a dearth of cases' does not constitute ‘substantial ground for difference of opinion'” (quoting White v. Nix, 43 F.3d 374, 378 (8th Cir. 1994))).
Nor does the Supreme Court's recent decision in Van Buren v. United States support Plaintiff's argument. 141 S.Ct. 1648, 1658 (2021). There, the Court appeared to indicate that it viewed the CFAA's “without authorization” clause as protecting computers and computer systems from “so-called outside hackers-those who ‘acces[s] a computer without any permission at all.'” Id. (quoting LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009)). This is consistent with this Court's view that the purpose of the CFAA's “without authorization” provision is to deter hackers and other high-tech criminals, rather than to preempt state regulation in the fields of consumer privacy and data protection. (Doc. 91 at 7.)
Second, Plaintiff fails to establish a substantial ground for difference of opinion on their vagueness claim. To start, determining whether the statute is unconstitutionally vague does not present a “novel and difficult question.” Couch, 611 F.3d at 633. Even if the Dealer Law's precise text may present an issue of first impression, determining whether a statute is impermissibly vague is a familiar task. See, e.g., Grayned v. City of Rockford, 408 U.S. 104 (1972); United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Nash v. United States, 229 U.S. 373 (1913); see also Association des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 946 (9th Cir. 2013) (finding economic regulation “subject to a less strict vagueness test than criminal laws” (quoting Great Am. Houseboat Co. v. United States, 780 F.2d 741, 746 (9th Cir. 1986))).
Nor does Johnson create a substantial ground for difference of opinion. Johnson v. United States, 576 U.S. 591, 603 (2015). There, the Court struck down a statute that defined “violent felony” as including any felony “that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of potential injury to another.” Id. at 593-94 (citing 18 U.S.C. § 924(e)(2)(B)). The unconstitutional vagueness problems arose from two sources. First, the statute required courts to ascertain the risk posed by a crime by considering a judicially imagined “‘ordinary case' of a crime” that “offer[ed] no reliable way to choose between . . . competing accounts of what ‘ordinary'” cases were. Id. at 597. Second, the statutory language left “uncertainty about how much risk it takes for a crime to qualify as a violent felony” since courts were forced to compare the risk posed by the “ordinary case” of a crime “in light of the four enumerated crimes, ” which were each “far from clear in respect to the degree of risk” posed. Id. at 598. However, the Court stressed that it did not “doubt the constitutionality of laws that call for the application of a qualitative standard such as ‘substantial risk' to real-world conduct; ‘the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree.'” Id. at 604 (quoting Nash, 229 U.S. at 377).
Unlike in Johnson, the Dealer Law calls for the application of a qualitative standard-“unreasonable restriction”-to real world conduct, not a judicially imagined notion of what unreasonable conduct in the DMS industry may be. A.R.S. § 28-4653(A)(3)(b); see Guerrero v. Whitaker, 908 F.3d 541, 545 (9th Cir. 2018) (finding-under Johnson's analysis-that since the “particularly serious crime” inquiry under 8 U.S.C. § 1231(b)(3)(B)(ii) applied only to real world facts, it is “not unconstitutionally vague on its face”). Therefore, Johnson does not establish substantial ground for difference of opinion.
While it is true that the statute does not specify the exact conduct it prohibits, the Court is “confident that ‘reasonable' [DMS licensers], experienced in the industry and well-schooled in” the custom of trade between dealerships and DMS licensers “will be able to comply” with its terms. Am. Coal Co. v. Fed. Mine Safety and Health Rev. Comm'n, 796 F.3d 18, 28 (D.C. Cir. 2015).
CONCLUSION
Since Plaintiff has not established a substantial ground for difference of opinion on either theory, it fails to satisfy 28 U.S.C. § 1292(b)'s requirements for certification of interlocutory appeals.
IT IS THEREFORE ORDERED that Plaintiffs Motion for Certification Pursuant to 28 U.S.C. § 1292(b) (Doc. 133) is DENIED.