Gormley v. Nike, Inc.

Filing 113

ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION OF ORDER DENYING MOTION FOR CLASS CERTIFICATION 111 (Illston, Susan) (Filed on 2/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DUSTIN GORMLEY, et al.,

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United States District Court
For the Northern District of California

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Consolidated Case No. C 11-893 SI

Plaintiffs,

ORDER DENYING PLAINTIFFS’
MOTION FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION OF
ORDER DENYING MOTION FOR
CLASS CERTIFICATION

v.
NIKE INC., et al.,
Defendants.

/

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Plaintiffs have filed a motion for leave to file a motion for reconsideration of the Order Denying

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Plaintiffs’ Motion for Class Certification. Plaintiffs contend that the California Supreme Court’s

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decision in Apple Inc. v. Superior Court, 2013 WL 406586 (Feb. 4, 2013), “is substantial evidence that

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the California Supreme Court would preserve its previous interpretation of the statute [in Pineda v.

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Williams-Sonoma Stores, Inc., 51 Cal.4th 524, 527 (2011)] and ultimately hold that the judicially-

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created ‘consumer perception test’ applied by this Court in ruling on the Motion contradicts the clear

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language of the statute that would cause the broad and robust privacy protections afforded to consumers

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to be ‘relegated to the dust heap.’” Docket No. 111 at 1:21-25.

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The Court has reviewed the Apple decision and finds that it does not provide a basis for

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reconsideration of the class certification order. Apple addressed the applicability of California Civil

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Code Section 1747.08 to downloadable products purchased online, and the Supreme Court did not

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consider the objective consumer perception standard which was applied by this Court (based upon

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California Court of Appeal case law) in the class certification order. Moreover, plaintiffs relied heavily

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on Pineda in the class certification briefing, and the order denying certification explained why the Court

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found plaintiffs’ reliance on Pineda misplaced. See Docket No. 108 at 9:16-21 (“Plaintiffs also rely on

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the California Supreme Court’s statement in Pineda v. Williams-Sonoma Stores, Inc., 51 Cal. 4th 524,

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527 (2011), that ‘requesting and recording a cardholder’s ZIP code, without more, violates [the Song-

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Beverly Act].’ However, Pineda did not address whether the statute prohibits any ‘request’ for personal

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information in conjunction with a credit card payment. Instead, Pineda only decided the question of

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whether ZIP codes constituted ‘personal identification information’ within the meaning of the statute.”).

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Accordingly, the Court concludes that the cases upon which this Court relied in the class

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certification order remain good law, and the Court DENIES plaintiffs’ motion. Docket No. 111.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: February 15, 2013
SUSAN ILLSTON
United States District Judge

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