Brett Kavanaugh and Gloria Navarro have breathed new life into a class action campaign against Ancestry.com for the use of childhood names and photographs in digital marketing.
Judge Kavanaugh drafted a 5-4 decision last summer that clarified standing in class actions, and Judge Navarro, of the U.S. District Court in Nevada, cited it last month as refusing to dismiss a case that invokes Nevada law on advertising rights.
This put Ancestry.com and its attorney Quinn Emanuel Urquhart & Sullivan on their heels after defusing similar allegations in California earlier this year. Class lawyers are asking U.S. magistrate Laurel Beeler to reconsider the June ruling, citing the Navarro ruling, and have filed new claims in California state court.
A wave of putative class actions targeting Ancestry.com, which was acquired by Blackstone Inc. last year for $ 4.7 billion, and other “people search” services have lit up Law.com Radar during of the last year. The lawsuits accuse the company of extracting personal information from school directories and aggregating it into a searchable digital database. The company reportedly advertised the database by sending promotional emails to potential customers that use the names and pictures of people without their permission, and pop-up ads that use the names and pictures of people to encourage salespeople. users to subscribe for more information.
“The complainants were seriously upset to discover that Ancestry was using decades-old photographs of complainants and the class as minor children to advertise paid subscriptions to the Ancestry.com website,” the complainants say in the California complaint.
Section 3334 of the California Civil Code provides for $ 750 in statutory damages for each unauthorized use of a name or photo, making the damage potentially astronomical. The lawsuits also appear to undermine the company’s business model of using names and photos to confirm the identity of the wanted person.
Michael Ram and Marie Appel of the Complex Litigation Group of Morgan & Morgan in San Francisco; Benjamin Osborn of the law firm of Benjamin R. Osborn in Brooklyn; and Samuel Strauss of Madison, Turke & Strauss of Wisconsin represent the plaintiffs in Zhang’s Transactions Against Ancestry.com, filed in Alameda County Superior Court on August 10, and in Callahan vs. Ancestry.com, filed in federal court in San Francisco on December 20.
Ancestry.com maintains that the complainants suffered no prejudice, so there is no standing. Beeler agreed. The yearbooks are already distributed to classmates, so using this public information to solicit subscriptions does not in itself establish any harm in fact, she concluded. She distinguished the California Advertising Law Act from the Wiretap Act and the Stored Communications Act, which conferred standing in similar cases. “The privacy rights protected by these laws are fundamental and the intrusion into these rights is sufficient to engage the liability of a defendant,” Beeler wrote.
If the plaintiffs had a commercial interest in their images, or if Ancestry.com had suggested that they personally supported Ancrestry.com products, the outcome could have been different, Beeler said. But in any event, Ancestry.com would be immune from any liability under Section 230 of the Communications Decency Act, as an interactive IT department that did not create the third-party content, Beeler ruled.
That made the winners Shon Morgan, partner of Quinn Emanuel, and his associates Jack Baumann and Cristina Henriquez, who represent Ancestry.com.
Ten days later, the United States Supreme Court rendered TransUnion v. Ramirez, a class action lawsuit against a credit bureau. Kavanaugh’s majority opinion held that tangible harm is satisfied when a legal cause of action has a “close relationship” to harm “traditionally recognized as providing a basis for legal action in U.S. courts – such as physical harm, financial harm or various intangible harm. “The court said essentially the same thing in 2016 Spokeo vs. Robins.
Navarro ruled on September 16 that Nevada’s advertising law met this test. “The law did not create claims not previously recognized by legislative decree. On the contrary, the right of publicity existed in common law, and the legislature codified the law, ”wrote Navarro in Sessa vs. Ancestry.com, which featured mostly the same lawyers from the California case.
“The court refuses to follow the California court’s conclusion because its order failed to consider whether the plaintiffs’ statutory prejudice had a common law analogue, as required by the Speak and TransUnionNavarro added. She said Nevada law protects the publicity rights of everyone, not just famous people who have a business interest in their name, likeness and image.
Navarro also took the other direction on Section 230, ruling that immunity may not apply as Ancestry.com is solely responsible for posting names and photos on its website after receiving other people’s directories.
This prompted the plaintiffs to return to Beeler’s court on September 23, asking for an indicative ruling that she would reconsider her June 15 order if the Ninth Circuit referred the case back to her.
Ancestry.com filed its objection Thursday. Morgan and his Quinn colleagues argue that TransUnion does not represent an intermediate change in the law of Speak which deserves to be reconsidered. As for Navarro’s decision, any conflict “will be resolved by the Ninth Circuit, not an inappropriate reconsideration motion.”
And in any event, they argue, Navarro’s ruling ignored that “Nevada law, like California’s, imposes a specific injury requirement for such claims.”
Ancestry is also seeking to withdraw the California Superior Court complaint in the Northern District Federal Court.
The action isn’t just on the West Coast. In Illinois, Edelson PC has filed alleged Illinois Right of Publicity Act (IRPA) class actions against Whitepages Inc., ZoomInfo Technologies LLC, RocketReach LLC, TruthFinder LLC and Instant Checkmate LLC. Edelson also sued WhitePages in 2019. Burson & Fisher is co-counsel in certain cases.
The lawsuits allege that when users type a name into these databases, they return a preview page containing the individual’s name and other identifying information, while also prompting the user to purchase a paid subscription. for email addresses, phone numbers, and other general information.
The plaintiffs argue that using their names without their consent to promote paid subscriptions violates Illinois law. Among other things, the database providers claim that they are no different from the Internet search engines that people use to search for information, and that they are exempt from liability under Article 230.
U.S. District Judge Charles Kocoras denied ZoomInfo’s request to dismiss on September 22. ZoomInfo is represented by Kirkland & Ellis.
U.S. District Judge Gary Feinerman dismissed the White Pages’ standing argument on July 16, saying it was an “easy case” under TransUnion and Speak. He earlier ruled that the allegations describe “a classic example under IRPA of a person’s identity being used for business purposes.” White Pages is represented by Vedder Price.
U.S. District Judge Elaine Bucklo dismissed RocketReach’s motion to dismiss on September 21. Bucklo said the Section 230 defense fails, at least at the argument stage, because the plaintiffs allege that RocketReach “organized” its data for commercial purposes “and used the identities of the group members for the to do. RocketReach is represented by Barron Harris Healey.
Jenner & Block is seeking to dismiss the actions against TruthFinder and Instant Checkmate, or to force arbitrations. No decision has yet been rendered in these cases.