UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARK JONES; MICHAEL MCKEE, No. 22-35447

Plaintiffs-Appellants, D.C. No. 3:21-cv- 05666-DGE v. FORD MOTOR COMPANY, a OPINION Delaware Corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding

Argued and Submitted August 22, 2023 Seattle, Washington

Filed October 27, 2023 Before: Michael Daly Hawkins, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion 2 JONES V. FORD MOTOR COMPANY

SUMMARY *

Article III Standing / Washington Privacy Act

The panel affirmed the district court’s judgment dismissing for failure to state a claim a class action alleging that the Ford Motor Company made unlawful recordings of plaintiffs’ private communications in violation of the Washington Privacy Act (“WPA”). The panel rejected plaintiffs’ request for remand to the Washington state court because it was based on the flawed argument that Ford “self-rebutted the assertion of Art. III jurisdiction” when it alleged that plaintiffs failed to plead a statutory injury under the WPA in its motion to dismiss. The injury-in-fact prong of Article III standing and the merits of a WPA claim are separate inquiries. With respect to constitutional injury-in-fact, the complaint’s allegations plausibly articulated an Article III injury because they claimed violation of a substantive privacy right. Article III standing was thus satisfied, and the district court properly retained jurisdiction. Turning to the merits of the WPA claim, the panel rejected plaintiffs’ claim that a violation of the WPA itself is an invasion of privacy that constitutes remediable injury. An invasion of privacy, without more, is insufficient to meet the statutory injury requirements of WPA Section 9.73.060. Plaintiffs must allege an injury to “his or her

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. JONES V. FORD MOTOR COMPANY 3

business, his or her person, or his or her reputation.” Wash. Rev. Code § 9.73.060. Plaintiffs failed to do so here.

COUNSEL Joel Ard (argued), Ard Law Group PLLC, Bainbridge Island, Washington; William R. Restis, Restis Law Firm PC, San Diego, California; for Plaintiffs-Appellants. Peder K. Batalden (argued) and Emily V. Cuatto, Horvitz & Levy LLP, Burbank, California; Aaron D. Van Oort (argued), Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota; Eric B. Wolff (argued), Perkins Coie LLP, Seattle, Washington; Anthony Todaro and Jeffrey B. DeGroot, DLA Piper LLP (US), Seattle, Washington; for Defendants-Appellees.

OPINION PER CURIAM:

Plaintiffs Mark Jones and Michael McKee appeal the dismissal of their class action alleging that the Ford Motor Company (“Ford”) made unlawful recordings of their private communications in violation of the Washington Privacy Act (“WPA”). I. BACKGROUND Ford manufactures and sells automobiles with integrated infotainment systems that allow drivers and passengers to use their cellphones hands-free while operating Ford 4 JONES V. FORD MOTOR COMPANY

vehicles. According to the complaint, as part of this design, the infotainment system automatically downloads, copies, and indefinitely stores the call logs and text messages of any cellphone connected to it. If text messages or call logs are deleted from a cellphone, the vehicle nevertheless retains the communications on the vehicle’s on-board memory, even after the cellphone is disconnected. Vehicle owners cannot access or delete their personal information o