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Gubala v. Time Warner Cable, Inc.

United States Court of Appeals, Seventh Circuit

January 20, 2017

Derek Gubala, individually and on behalf of all others similarly situated, Plaintiff-Appellant,
v.
Time Warner Cable, Inc., Defendant-Appellee.

          Argued January 4, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15 C 1078 Pamela Pepper, Judge.

          Before Posner, Easterbrook, and Sykes, Circuit Judges.

          POSNER, Circuit Judge.

         Time Warner Cable provides Internet access, television programming, and other online services to residences via cable. The plaintiff, Derek Gubala, subscribed to Time Warner's cable services in 2004 and as required provided Time Warner with his date of birth, home address, home and work telephone numbers, social security number, and credit card information. Two years later, however, he cancelled his subscription and eight years after that (2014), upon inquiring of Time Warner, learned that all the information he'd given it when he'd subscribed to its residential services a decade earlier remained in the company's possession. And in apparent (though, as explained later in this opinion, not certain) violation of federal law, none of it had been destroyed.

         Gubala filed this class-action suit against Time Warner Cable seeking injunctive relief (originally damages as well, but that claim has been abandoned) for alleged violations of 47 U.S.C. § 551(e), the subsection of the Cable Communications Policy Act which provides that a cable operator "shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information [either by a cable subscriber, seeking access to his own information] ... or pursuant to a court order."

         The district judge dismissed the suit on the ground that the plaintiff lacked standing to bring it. As an alternative ground for dismissal she ruled that even if the plaintiff had standing, he'd failed to state a claim upon which relief could be granted. He couldn't be given an injunction, the only remedy he sought, because he had an adequate remedy at law-namely damages, authorized by section 551(f) of the Cable Act-that he had failed to seek.

         We can assume at least tentatively that Time Warner had violated the statute by failing to destroy the personally identifiable information of a person who had subscribed to its service a decade earlier and had canceled his subscription after two years. Gubala knew of the violation (for he had asked Time Warner whether it had destroyed his personal information and it had replied that it had not), and he may have feared that despite its denial his personal information might have been stolen from Time Warner or sold or given away by it, and if so the recipient or recipients of the information might be using it, or planning to use it, in a way that would harm him. Although it's plausible that he feared this, he never told us that this is what he was worried about. His only allegation is that the retention of the information, on its own, has somehow violated a privacy right or entailed a financial loss.

         There is unquestionably a risk of harm in such a case. But the plaintiff has not alleged that Time Warner has ever given away or leaked or lost any of his personal information or intends to give it away or is at risk of having the information stolen from it. It's true that section 551(f)(1) of the Cable Communications Policy Act provides that "any person aggrieved by any act of a cable operator in violation of this section may bring a civil action in a United States district court, " but Gubala has presented neither allegation nor evidence of having been "aggrieved" by Time Warner's violation of section 551(e)-no allegation or evidence that in the decade since he subscribed to Time Warner's residential services any of the personal information that he supplied to the company when he subscribed had leaked and caused financial or other injury to him or had even been at risk of being leaked.

         All he's left with is a claim that the violation of section 551(e) has made him feel aggrieved. So a claim for damages would get him nowhere because the damages could not possibly be quantified and anyway are not even alleged, and as for his chosen alternative of seeking injunctive relief in lieu of damages, having not alleged that he's in fact aggrieved by Time Warner's statutory violation he can no more establish irreparable harm (the condition for obtaining such relief) than harm reparable by an award of damages.

         The district judge was right, in these circumstances, to rule that the plaintiff does not have standing to sue. Article III, section 2, clause 1 of the U.S. Constitution authorizes the federal judiciary only to decide cases or controversies (the two terms have been treated as synonyms) arising under federal law or within the diversity jurisdiction. The term "cases or controversies" appears to (and has long been held to) exclude advisory opinions, which are authorized under state law in some states, as where a governor asks the state supreme court to advise him on the constitutionality of a proposed statute, a situation in which there is not yet a case because there is not yet a statute. See generally Mel A. Topf, A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy (2011).

         Even if there is a case -a lawsuit-it is not justiciable under federal law unless the plaintiff has a "concrete" interest in prevailing in the case, for such an interest is the sine qua non of "standing to sue." Gubala's problem is that while he might well be able to prove a violation of section 551, he has not alleged any plausible (even if attenuated) risk of harm to himself from such a violation-any risk substantial enough to be deemed "concrete." See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016)-also Braitberg v. Charter Communications, Inc., 836 F.3d 925 (8th Cir. 2016), a case very similar to this one, litigated on behalf of the plaintiff by the same lawyer who is representing Gubala in the present case. And the type of interest asserted in cases like Braitberg and the present case is not enough to establish standing, as otherwise the federal courts would be flooded with cases based not on proof of harm but on an implausible and at worst trivial risk of harm.

         In Lujan v. Defenders of Wildlife, 504 U.S. 555, 566-67 (1992), the Supreme Court said that standing is not

an ingenious academic exercise in the conceivable, but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible-though it goes to the outermost limit of plausibility-to think that a person who observes or works with animals of a particular species in the very area of the world where that species is ...

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