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151104 - In re Certified Question: Deacon v Pandora Media, Inc.

In re Certified Question from the United States Court of Appeals for the Ninth Circuit
Peter Deacon, Individually and on behalf of all others similarly situated,
Ryan D. Andrews
Henry M. Scharg
(Certified Question)
Pandora Media, Inc.,
Jill M. Wheaton


Pandora is service that streams music to users based on their individual musical preferences. Individuals can customize choices regarding artists and types of music. Subscribers are not able to choose the actual music or the order in which it is played. Pandora temporarily stores a digital copy of the music on an individual’s computer or other device. The digital copy remains there until the music is finished and then it is automatically deleted by Pandora. Selections cannot be downloaded. Pandora doesn’t sell music but users can access links to web sites where music can be purchased. Personal pages are created for accounts that include name, profile information, listening history, and bookmarked artists. Subscribers can create two types of accounts. One is free but includes ads; the second is a premium version without ads. Peter Deacon is a Michigan resident who created a Pandora account in 2008. 
Deacon alleges that Pandora violated VRPA by disclosing his name, listening history, bookmarked artists, and bookmarked songs so they were searchable on the Internet and viewable by his Facebook friends. Deacon also claimed Pandora violated the Michigan Consumer Protection Act (MCPA), MCL 445.903 and sought damages under VRPA of $5,000 per class member and an order requiring Pandora to stop disclosing the personal profile information. 
Deacon filed a class-action complaint in California because Pandora’s headquarters is located there. The federal district court dismissed Deacon’s claim, granting Pandora’s motion for summary disposition after concluding that Deacon failed to state a claim under the VRPA. The court offered to let plaintiff amend his complaint to state an individual action, rather than a class action, but he declined to do so. Deacon appealed the court’s decision to the Ninth Circuit Court of Appeals. The Ninth Circuit certified the question to the Michigan Supreme Court, which ordered oral argument on whether to answer it. 
It its order of September 25, 2015, the Michigan Supreme Court directed oral argument on whether to grant the request to answer the certified question. The Supreme Court orders oral arguments in cases where the Court is deciding whether to grant leave to appeal or, as in this case, grant a request to answer a certified question or take some other action. Each side has 15 minutes for argument, rather than the 30 minutes allowed in cases where the Court has already granted leave.