Plaintiffs Press Court Not to Toss Right-to-Publicity Case Against PeopleConnect

Alabama and California plaintiffs made arguments against dismissal on Monday, asserting that people search websites operated by the defendants are “‘textbook example[s]… of using a person’s identity for a commercial purpose.’” The opposition comes after the defendants, Control Group Media Company LLC, Intelius LLC, and PeopleConnect Inc., moved to dismiss last month.

The case, before Judge Michael M. Anello in San Diego, Calif., asserts that the defendants “use the identities of Alabama and California residents in free preview ads to promote their subscription services,” as previously reported. The websites reportedly draw on both publicly available and private information in order to return search results about individuals, such as location, age, and known relatives, in order to entice users to purchase subscriptions, which the plaintiffs argue violates their state law privacy rights.

The defendants made multiple contentions in their motion to dismiss. These included that the Alabama plaintiff’s claims must be arbitrated, that the plaintiffs fail to plead all elements of their right-to-publicity claims, and that Section 230 of the Communications Decency Act (CDA) bars the suit.

The plaintiffs argue otherwise, highlighting that courts across the country have found for litigants bringing “virtually identical” right-to-publicity allegations. The filing points to multiple federal court cases upholding suits brought under the right-to-publicity laws of Illinois, Indiana, Ohio, and Nevada.

They also assert that the defendants’ arguments in favor of arbitration fall flat as substantively baseless and questionably brought under Federal Rule of Civil Procedure 12(b)(3). Further, the opposition says that there is no suggestion that the Alabama plaintiff “ever saw or signed the class action waiver and his counsel’s investigation of the claims cannot bind him to it.”

The plaintiffs also highlight sections of the complaint showing that each of the right-to-publicity law elements are met. As to the Section 230 argument, they reject the defendants’ invocation of a Ninth Circuit case, purportedly ruling that “the CDA applies because they deliver content in response to users’ search results.” The plaintiffs claim the case is inapposite because that case is about “third-party content housed in Defendants’ databases,” whereas the instant case is about “the legality of free preview ads created by Defendants.”

Finally, the plaintiffs take on the people search websites’ free speech argument. They contend that the free previews that appropriate the plaintiffs’ identities fall outside constitutional protection, and are instead regulable commercial speech.

The motion to dismiss hearing is scheduled for May 16. The plaintiffs are represented by Bursor & Fisher P.A. and Edelson PC and the people search websites by Jenner & Block LLP.