rule twelve b one for lack of standing our central argument is that the district court mistook misgivings about our case on the merits for a problem of standing the fence convince the district court that hacking of personal automobiles is extremely unlikely simply because we don't have many examples of it having happened so far those points may well bear on the appropriate duty of care or whether inclusion of security against hacking is part of the implied warranty of merchantability but those are points on the merits they are not points about standing standing is about whether we have the right plaintiffs to bring the claim not about whether that claim is ultimately likely to succeed it isn't a quick peek at the merits to screen out non meritorious claims a jury or court may ultimate that the defendant's cars are safe or not safe but surely the car's owners are the right people to make the argument that they are not so if your theory of standing theory of injury that you suffered based upon the reduction in economic value of the car or based upon the likelihood or lack of likelihood likelihood from your post spread perspective of an invasion by way of hacking into the system because i thought your first argument was this is all it's go theories of standing on that point i think at the end of the day they're not all that different the first one is that we allege that our clients have a present economic loss because they didn't get the safeguards that they paid for this court held in maya that when a defendant sells you something that turns out to be riskier than you so i was i was really interested to find out how you actually prove that what representation you make other than just the conclusory representation the car isn't worth this much for instance do you have an expert to commit and say that the value of the toyota is reduced from x to x x to y based upon the fact the system exists your honor i think that might be very important when you're trying to prove damages at the at the marriage stage but my explicitly said that that was not necessary and the buyers of homes sued the developers for satan for engaging in certain practices that made their neighbor had they alleged i don't remember if i was a motion to dismiss or summary judgment but in my of the price had gone down and that was part of their claim and you have not said that the price on the market went down or it in the resale value went down or anything but the my explicitly said it was a motion to dismiss that it was a present injury now and it was not dependent on future movements in the housing market they also says time is not dependent on any movements in the housing market in the future they also said that you don't have to cash out the amount of the loss it's sufficient to allege price had dropped once people started foreclosing or whatever because the owners were living there i mean they are were already alleging that the prices had dropped from when they had expected them and bought them i'm not sure how that's different from alleging that the house is worth they had talked about other houses in the neighborhood they did not rely to my recollection on the notion that other houses had sold for less than that it was thought they were right and they were saying that the price had dropped i mean the average house prices they said that our houses worth less than we thought because we had this built in liability this built in vulnerability in the market for in our neighborhood but they did not ever try to sell their houses that in fact the district court for them out because they had not tried to sell their houses loss and this court said on appeal that you don't have to try to cash that out specifically and show that you know to prove that the loss happened you don't have to realize the loss it's enough that you allege that our house is worth less than you paid for it but i you know i appreciate the fact that to make representations probably based upon good faith that the value of the of the cars went it's a little difficult because essentially at least some representation than one hundred percent of the vehicles in the country have you know similar kinds of problems that you've got but what i'm interested in knowing is what evidence you have of that whether it's by way of expert testimony whether it's by way of surveys or anything which says that the value of toyota is whatever five percent based upon this particular problem with the system your honor we're at the motion to dismiss stage and so you have to take general allegations as including the specific ones the court also said maia they don't 'm not sure i saw any kind of claim like my injury that gives me standing is that subjectively i'm now too scared to drive my car did you allege something like that because if you did i missed you don't know what they did have they claim that part of it aside from the price they also had a quality of life injury that i didn't are you alleging i leave my car in my garage and take the bus because i'm too scared to drive my car we allege that the safety of the automobiles is part of what makes them fit for the purpose for which they are bought which is a requirement under the various california consumer protection statutes and the common law theories of warranty in this representation is that we were told that these were safe we'll let we certainly allege that we care about them being safe and we allege that they are worth less to us because they are not say they like anomaly i think you didn't say we're not using it as much as we plan to use it or some other thing that is is elaborating in any specific way i don't think we have to say that with respect your honor i think if i buy a car with an airbag and i pay a certain amount of money because it has an airbag in it and i think it's going to make me safer and it turns out that the airbag doesn't work then no one is going to say i don't have standing to sue simply because i might not ever get in an accident and their bag never need the airbag and i don't think anyone would require me to prove exactly how much less the car is worth because of the airbags and i don't think it would make any difference if you could show that all of the cars had bogus airbags that didn't work right or not talking about ultimately being able to realize this lost by designs effects that they failed to disclose they would not have purchased their class vehicles or not have paid as much as they did to purchase them is that basically yes so you're not claiming actually  purchasing it you're claiming that it wasn't worth it at the time and at the time was quite a while ago i mean one of the problems with that is that you then have to be able to prove that cheo to and g m knew about these problems when they purchased it a and that it was somehow in the marketplace because another is that that there was some awareness of this because if there wasn't any awareness of it it to the issue of what the time period ends it seems to me that you have to think demonstrate an injury in order to make a plausible allegation that the case of a car was worth less when you bought it than you paid for it don't you have to have some doesn't the unsafe this have to be accounted for in the market place at the time  if we were required to cash that out into a particular amount of money in the way that you realize a loss on your taxes i think that would be true but if our allegations simply that our cars are not worth as much to us know w we thought we were buying a safe car at the time and it wasn't as safe as we thought it was and subjectively we might not have bought it if we'd known that it wasn't safe i bought a used car that wasn't vulnerable to hacking because it was before they all got connected to the internet of the actual safety problem here and it passed as apply to any individual because i guess the question is alleging i wouldn't have bought it if i knew what i know now just by itself enough one is likely to say wait a minute you know we're really going to not buy this car because something that's never happened even in the last eight years made some third party bait figure out how to get into the engine this and and  standing but doesn't my just say that the site itself or the proposition that we don't really look at the merits i don't think it means that we don't look at possibility of your standing allegations we just look at the merits that's how i read that statement and i'm not sure exactly paranoid when we buy our cars so the question is what is the burden of care on the on the defendant but that is a question on the merits and the other allegation which is it would have been one and would have been worse less is something as to which as i said there are allegations it seems to me you have to make including the fact that the market was aware of this i think the allegation is that it would be worth less but we don't have to show  less we don't have to quantify that a big part of our case is injunctive relief we simply want the cars to be fixed and there is no qualification would ever be required at any stage of the but a geisha in your honor as i watch the time take down i would like to tell you about our said you may not like privacy life and that is that well know that we also assert injury in fact from being hacked in the future because the most reasonable time to guard against that injury is now people pay a lot of money to guard against future risks when they buy cars and the laws of torts in warranties impose an obligation to go in to guard against those sorts of risks up front and the defendants have violated those obligations to our clients at the moment they sell us a when i was saying that that doesn't that it is subjective sense of the risk doesn't seem to be alleged here well i think it is alleged when we say we thought we were buying a safe car we thought that the california protection laws required us to be sold a safe car and that this was not fit for the purpose seeing as i was a district court understood this complaint to be making an allegation about the price dropping some economic argument and you could have gone back to the district court and said no no no we're alleging a subjective thing we're alleging that we're so scared we stay up at night because we're losing sleep and therefore whatever because we're so scared about our cars i don't see anything in the complaint like that i think those are all consequential injuries that might fall for and that might follow from the violation of our legal right to have a safe car but injury in fact is a violation of our legal rights and the legal rights that we have is to be sold a car that is fit for the purpose that that it is sold to us for that's what the consumer protection laws say that's that's the right that they create and when those rights are violated by not selling us a car that is itself injury in fact and so consequential consequential day injuries that might follow on from that maybe we do get hacked in the future or maybe we're scared if there's nothing in the complaint which in which you rely upon the subjective impact on the potential driver  as a basis for standing we do not plead particular consequential injuries flowing from beyond our legal injury in fact because article three does not require a so if we disagree with you and we think that this complaint reads like you a price drop which you have specifically alleged so we think you need something else could you amend it to say subjectively we're not driving these cars convert you say or something like that i think we could amend that and so should you have an opportunity to do that even though you when you were given that opportunity before you didn't take then there are consequential damages that might flow beyond that but that is not part of the i notice that you have not in fact discussed a privacy claim that yes because you're a band you know i like the privacy plame very much because if you drove around in a  morning you were broadcasting your your whereabouts so that is about any allegation in your complaint that the information you're broadcasting is individually identifiable i believe we do here is that it is incorporated in the marquee report which i believe talks i'm assuming that the fact that they know how your car is mechanically operating is not a privacy claim for you so therefore though it's seems to live in time to locational well if i drive too fast or flex various information about driving habits for instance which might be an issue of privacy my wife hates it when i quadrille it's location clearly but the question is whether you can link the location to the actual i whether california law would require that to have a privacy claim is a question on the merits and not a question for standing all these i don't know i mean we may not agree with you so i mean for you to have a privacy claim i think i think it's at least possible that you would have to say the privacy you claim affects me that there's something about me that people are learning in order to have them that i mean you might disagree but that it would be helpful to know whether you did allege that the information about me is being taken right well one would ever know it's about you then it's a little hard to see how it injures you well the california does not require disclosure as as much as we have a standing rule in federal court that we have to figure out whether you're actually injured so california whether california on the merits cares a different question i think that's true but this on remand in spokeo said the certain statutes or i think state constitutional provisions create rights that if the intrusion on that particular bite is itself the injury in our position would be that the collection of the unwarranted collection of personal data is the injury itself and that's all that article you got i got a claim under the california constitution the question is whether this kind of information is that kind which is essentially protected under the right of privacy in california is it is this kind of technical information about the location or the or the manufacturing aspects of the vehicle that kind of information which should be protected by the constitution and we argue that it is the location evidence in particular to whether in fact you whether whether somebody could say the car went here and this car is actually being operated by or is owned by this person so this person's individual privacy concerns would be at risk good afternoon your honor sir chris charged on behalf of the defendants that's fair to defendants may please the court along with my colleague ms favi we've agreed to divide the argument with the court's permission i will handle the article three issues as well as any alternative specific grounds to go to and this fall be able to dress the privacy claim both on the merits and on article three bronner's connected technology presents both opportunities and challenges for product innovation and consumer safety these policy issues presented by these technological advancements deserve careful attention but this lawsuit is not the proper vehicle to tackle these issues the district court here properly rejected plaintiff's claims all of their claims because they rested on a purely speculative theory of injury and judge or correctly dismiss this punitive class action is that because i made points you seem to be saying that they themselves have to allege that they've been hacked or are in imminent danger of being hacked actually happened people are actually hurt and i think come in and say well my car hasn't happened yet but i'm really afraid it's going to want to and i think my and i can demonstrate with the blue book that the value of these cars has dropped and i want to bring a case the fact doesn't matter that it hasn't happened to them it needs to be one of the other your honor and that's why the unintended acceleration cases that's why judge or excited those at length it needs to be something else something beyond i paid money for a product and that's exactly what's lacking here and in those cases judge selma and the unintended acceleration cases held in the first instance that something else was lacking because the original complaint in that case  that the plaintiff purchased a product and that the product was worth exactly what we had here and he dismissed it and then it was on the second round where the plaintiffs came forward and you had approximately half of the name plaintiffs how do i either experience sudden intended acceleration which was the alleged defect in the case or they alleged that their value of their vehicles was worth less so it had to be one of the other it couldn't just be purchasing paying money for a product so it was one of the other here we just that they're so scared to drive it because they know that these cars are accelerating on people out of control that they don't drive it anymore thing in their garage and they're taking the bus and that was also the allegation your honor in then attendance acceleration cases you think that's insufficient standing in our federal court your honor even accepting argue when know that that would have stablish imminent injury in fact and we would need to look at those allegations that weren't lacking here and evaluate them we would then have the question of causation which the supreme court has held  numerous occasions is an independent requirement of standing and so although in the up in the and that's where critical factual distinction would emerge from the end and then your argument would be this person is just paranoid it's not really caused by a car or something like that i don't mean by causation no what i mean by causation is in the example if we use the hypothetical the unintended acceleration and the car just let's suppose as we would dispute this factually that the car just accelerated on its own there wouldn't be any intervening third party act here any hack you know so it's just stick with the hypothetical the person says i've read in the paper that these cars are accelerating out of control i'm now not driving my car because i'm so scared about this it's sitting in my garage and i'm taking the bus tell me why that isn't standing well if again we're and unintended acceleration you need to examine the separate requirement that it's concrete in that it's actually particular lies as individual which under your hypothetical would be then you would need to examine that it's actually emmett and you need to look at the instances in which this is that this is just throwing a lot of words around but the question is whether if that the basic question is whether if there were a substantial number of instances of this actually happening  could someone tell me ten actually happened establish standing by saying there is a risk it's going to happen look at all these other people to whom that happened and either i'm putting my car in the garage or i can some by car because no one wants it or something yes your honor in a specific instance and i'm sure i won't sleep at night that i have to drive a car i don't have a choice but i'm miserable and i'm throwing words around but these words have legal meaning established legal meaning in the  clapper case in the spokeo case most recently and the supreme court held that there is both concrete and particularized but also the injury has to be actual or imminent not conjectural hypothetical so that i mean that's what at this is what we're trying to get at least what i'm trying to get in order to get back to this case there's the actual imminent have to be that the cars really is going to accelerate even if it only happened two hundred people out of a million or can it be that  hundred out of a million is enough to make me really upset enough and that the problem here is we don't have one hundred million we have nothing is the problem that there was no actual instance year or ten didn't happen to that it's both your honor and the it didn't happen to them goes to prove that particular ization but you would argue that even if they had happened to one hundred even if there had been one hundred had cars which ran off the road they still would have a no and i want to be crystal clear that is not what we're arguing on or the only the only point is when dealing with hypotheticals you need to examine is it actually imminent or is it conjecture or hypothetical and here whether it's one hundred out of a million or whether it's one out of one hundred you need to look at each case on its facts and as your honor noted here it's zero but  so if they were legit which i actually don't think they are but maybe they could amend so we have to get to that issue if they were alleging that i am so miserable every minute of the day because of my car the possibility that my car might be hacked that would be an it's five thirty two f thirty nine sixty three this this circuit held that where the plaintiff proceeds to an appeal and forgoes the amendment that they saw in the district court they have way of that city answer question raised earlier no they cannot under under circuit precedent seek leave to  you have to examine the allegations and conclusory allegations are insufficient so in your honour's hypothetical you would need to look at that is someone fearful is it based on something that's actually real and that's happened or is it something they saw in a movie that's completely  have to point out the earliest study they cited was three years after ms k had purchased her lexus the only vehicle manufactured by my clients so three years later so this whole issue of what did the manufacturer know at the audigy is that she has been alleged that her car's los are relying upon the fact that the actual representations about loss and value is conclusory and there's no evidence that's roff or to substantiate those particular that's right the only options the only issue just to clarify are not evidence diminished value they did allege that there were a lot of foreclosed houses right and the point i was trying to make your honor is in each of those three cases you had something else other than players position on this appeal appears to be we paid for a product that's enough that unlocks the article three gate but all of those cases there was an affirmative misrepresentation in my it was we are going to market to stable reliable buyers and we're going to have people living here who are going to occupy the homes in fact the plaintiffs allege in that case they were marketing a risky buyers they were marketing to buyer investors who were not going to live in the homes and who knows the basic allegation was this merchandise at coles is on sale it's actually not on sale it's always at this lower price and finally in maza it was a four thousand dollar ad on option at the we agree their stand while the viability of the claim yes was dismissed i wondered about the way that was presented because we can't understand the alternative say well there's no claim here anyway and not just side standing we still have to decide absolutely absolutely your honor and so when we look at standing plaintiff neeson has had his g m car it's a two thousand and thirteen chevy volt and nothing has happened with regard to it's information he's not alleged that any information from his car has been stolen taken in appropriately published instead what he claims is that might happen because g m allegedly is collecting that data and according to a senator's report sharing that with third parties the marquis report doesn't talk at all about specific plaintiffs that don't you make a disclosure to a buyer chevy volt that in fact there is this collection of data you basically tell them they're going to collect the data and you collect the data i thought that's right you know that's no big surprise to anyone dawnstar system doesn't work unless you can inform it where you are and you can send service whether it's sending gasoline can for you or coming to rescue i'm a little confused that you are starting to say nothing has been collected about its car but now you're saying of course it's being collected that's how it works when no information may be collected and his alleged information has been collected and that it could have been transmitted to a third party but that in of itself in this circuit the collection of data has not been held collect everything i don't have to prove that they collected be that they are at least collecting information about when i'm on line enough to target ads to me and someone do i have to prove that they did it to me particularly when it's confused about whether you're saying no information is being collected from this car or whether you're saying the information that's being collected from this car is not attributable to this person when he has an alleged that the information from his car is attributable to him that's one issue the second issue is even if it has been collected and perhaps the information about his brake pads or where he is located has been collected and put somewhere that's an assumption but that's what he is saying could go wrong that has to be there's got to be some imminent threat that that information is going to be somehow disclosed or somehow used in fact that i don't want some person in general motors having access to where i'm driving it doesn't why does it have to be somebody else other than the fact that some computer and general motors has this information anybody and general motors who look at it well first of all it the case that if i don't want general motors to get by and for him to know where i'm driving and general motors has set this up so you know when i'm driving there in value my privacy i mean maybe it isn't enough for a cause of action but if you say you know i'm i'm a spy i don't want anybody know where i'm going and general motors knows where i'm going whether they're telling anybody else or not why why what's the relevance of the disclosure well first of all general motors is not alleged in the complaint to know where his chevy volt is why he does not make that allegation and i think the page doesn't say it's him or because he doesn't say they're collecting about anyone he doesn't say it's about him but he has a son that's about what about google that makes no sense i mean if he says they're collecting about everyone then they're collecting evidence that there is a concrete and actual injury that could occur to him based on g m having that data some clarification so what so there's really there's data which is being transferred to general motors or someone else and the fundamental question is for him to suffer some personal injury there needs to be a linkage between the data and the individual i mean that i think that's what we're asking first of all was there any representation in the come in the complaint which that which suggests that that's at the heart of their privacy complaints that is that the heart of the injury and second as a practical matter is there a way that you could make linkage personal data from the car can be linked to him in any way shape or form and that's exactly what judge oric was looking for when he invited an amendment to the complaint which they sought an extension to do and then failed to do and came before the court on appeal to the focal point alleging that then there was no representation that there is that linkage between the data and the individual there is no complaint there's no allegation in the complaint that links the data to the individual named plaintiffs for the class are it's a mark you report systems have begun to use remote disabling to track and just sable vehicles of the cars should i keep up with their payments sort of they've been reported stolen so they must be able to keep up with individual locations where they are i don't actually i don't think that the report specifically says i just read you can go ahead and read that again let me car dealerships and navigation systems providers  also begun to use remote disabling wench enable them to track and disable vehicles if drivers do not keep up with their payments or of correspond reported as stolen and again that's not at all tied to either the manufacturers can then access the particular car and into the location of the car and disable the car at that point not necessarily providing data which is private in nature just using the fact that there report that substantiates that your honor so is it a legit i mean does the report say i thought i thought part of your answer to their allegation that the price dropped was how could it drop because it's all cars i thought that was part of your response so that suggests to me that whatever the marquis report saying is about all cars that are sold in those years you know what what all cars have is a can bus system that could potentially be hacked markie report is a very separate and the marquis reports looking at privacy  and the data collection aspects of that they really don't rely on the canvas for hacking again i think that the privacy claim here the issue underlying it is incredibly  theoretical in terms of nothing having been stolen except era we haven't talked about the underlying california constitutional claim but given time i just want to make one point the seriousness that the constitution requires there is no case that says that simply geo location information in and of itself rises to the level of serious  that's it only is if it's an invasion of privacy so there's certainly have been certainly at least a fresh issue and there has been some cases that have held in the criminal context but it's the same cause the same question if somebody knows where you are and you don't want to show because they're using your cell phone some part of the allegation here as i understand is that is through cell phones because of the bluetooth there is a supreme court case in which a tracking device is put on the bottom of the car and the century the location of the car was sufficient to afford fourth amendment protection so there's none of those allegations are in this complaint and while they're very ask anybody under strain they all tell you that in their opinion their risk they don't want somebody they want to know where they are know where they are but the location of the car on the street is known by people observing it there's nothing inherently and the existence of a privacy interest in the first place is meant to be a filter to filter out to minimize claims later cases she handload or longer and all say that the important element of this is the balancing and that that's best not resolved on the plea have you found anything in your complaint that says that it's individually identifiable meaning the information could be tied to the driver or your own i think the best thing we've got is a paragraph fifty but says and defendants collect large amounts of data and they transmit the data to third party data centers without effectively securing the data and i think nothing about whether it's connected to which car and which driver well we think that that's a general allegation that includes they're not anonymizing it and by incorporating it explicitly by reference the kind of like making the marquis report it doesn't include that information about the fact that for some reason you haven't relied on the mark until i said that there was no indication that you were lying on the marker point as big part of the complaint i tried to if i didn't then i misspoke but we have incorporated by reference and if they can identify people that are behind in their payments then they can tell that it's individual people i guess there's a difference between identifying them and collecting the data and keeping it that's true but we do have a specific allegation that they're if they think that we're wrong about this but i think that is a question on the merits and not a question about whether the river right people do is that sort