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Case 3:20-cv-08437-LB Document 39 Filed 05/10/21 Page 1 of 21
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
` Shon Morgan (Bar No. 187736)
` (shonmorgan@quinnemanuel.com)
` John W. Baumann (Bar No. 288881)
` (jackbaumann@quinnemanuel.com)
`865 South Figueroa Street, 10th Floor
`Los Angeles, California 90017
`Telephone:
`(213) 443-3000
`Facsimile:
`(213) 443-3100
`
` Cristina Henriquez (Bar No. 317445)
` (cristinahenriquez@quinnemanuel.com)
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone:
`(650) 801-5000
`Facsimile:
`(650) 801-5000
`
`Attorneys for ANCESTRY.COM OPERATIONS
`INC., ANCESTRY.COM INC., and
`ANCESTRY.COM LLC
`
`MEREDITH CALLAHAN and
`LAWRENCE GEOFFREY ABRAHAM, on
`behalf of themselves and all others similarly
`situated,
`
`
`Plaintiffs,
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
` CASE NO. 3:20-cv-08437-LB
`
`REPLY IN SUPPORT OF DEFENDANTS’
`MOTION TO DISMISS FIRST AMENDED
`COMPLAINT PURSUANT TO FRCP 12;
`
`
`
`
`Hearing Date: May 27, 2021
`Hearing Time: 9:30 a.m.
`Location: San Francisco Courthouse, Courtroom B
`
`
`
`vs.
`
`
`ANCESTRY.COM OPERATIONS INC., a
`Virginia Corporation; ANCESTRY.COM,
`INC., a Delaware Corporation;
`ANCESTRY.COM LLC, a Delaware
`Limited Liability Company; and DOES 1
`through 50, inclusive,
`
`
`
`
`
`Defendants.
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`TABLE OF CONTENTS
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`Page
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`PRELIMINARY STATEMENT ........................................................................................................1
`ARGUMENT .....................................................................................................................................1
`I.
`PLAINTIFFS STILL CANNOT ALLEGE A COGNIZABLE INJURY ..............................1
`II.
`PLAINTIFFS OFFER NO REASON TO REVISIT THE COURT’S
`DETERMINATION THAT ANCESTRY IS IMMUNE PURSUANT TO
`SECTION 230 OF THE CDA ................................................................................................8
`PLAINTIFFS’ CLAIMS ARE PREEMPTED BY THE COPYRIGHT ACT .....................12
`III.
`NO PLAUSIBLE CLAIM EXISTS FOR INTRUSION UPON SECLUSION ...................14
`IV.
`PLAINTIFFS ARE NOT ENTITLED TO STATUTORY DAMAGES .............................15
`V.
`CONCLUSION ................................................................................................................................15
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`Adkins v. Facebook, Inc.,
` 424 F. Supp. 3d 686 (N.D. Cal. 2019) ................................................................................. 7
`Anthony v. Yahoo! Inc.,
` 421 F. Supp. 2d 1257 (N.D. Cal. 2006) ......................................................................... 4, 12
`Aroa Mktg., Inc. v. Hartford Ins. Co. of Midwest,
` 198 Cal. App. 4th 781 (2011) ............................................................................................... 8
`Atl. Recording Corp. v. Project Playlist, Inc.,
` 603 F. Supp. 2d 690 (S.D.N.Y. 2009) ................................................................................ 11
`Batzel v. Smith,
` 333 F.3d 1018 (9th Cir. 2003) ........................................................................................ 9, 10
`C.M.D. v. Facebook, Inc.,
` 2014 WL 1266291 (N.D. Cal. Mar. 26, 2014) ..................................................................... 3
`Calence, LLC v. Dimension Data Holdings, PLC,
` 222 F. App'x 563 (9th Cir. 2007) ....................................................................................... 15
`Campbell v. Facebook, Inc.,
` 951 F. 3d 1106 (9th Cir. 2020) ............................................................................................. 2
`Comedy III Prods., Inc. v. Gary Saderup, Inc.,
` 25 Cal. 4th 387 (2001) .......................................................................................................... 8
`Davis v. Facebook, Inc.,
` 956 F. 3d 589 (9th Cir. 2020) ........................................................................................... 2, 5
`Diamond Ranch Acad., Inc. v. Filer,
` 2016 WL 633351 (D. Utah Feb. 17, 2016) .......................................................................... 9
`Downing v. Abercrombie Fitch,
` 265 F.3d 994 (9th Cir. 2001) .......................................................................................... 4, 13
`Edwards v. First Am. Corp.,
` 610 F.3d 514 (9th Cir. 2010) ................................................................................................ 3
`Eichenberger v. ESPN, Inc.,
` 876 F.3d 979 (9th Cir. 2017) ................................................................................................ 2
`F.T.C. v. Accusearch, Inc.,
` 2007 WL 4356786 (D. Wyo. Sept. 28, 2007), aff’d, 570 F.3d 1187 (10th Cir.
`2009) .................................................................................................................................... 11
`Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC,
` 521 F.3d 1157 (9th Cir. 2008) ............................................................................................ 11
`
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`Fair v. Roommates,
` 521 F.3d 1157 (9th Cir. 2008) .............................................................................................. 9
`Fairfield v. American Photocopy Equipment Co.,
` 138 Cal. App. 2d 82 (1955) .................................................................................................. 6
`Fleet v. CBS, Inc.,
` 50 Cal. App. 4th 1911 (1996) ............................................................................................. 12
`Fraley v. Facebook, Inc.,
` 830 F. Supp. 2d 785 (N.D. Cal. 2011) ......................................................... 2, 3, 5, 6, 12, 15
`Frank v. Gaos,
` 139 S. Ct. 1041 (2019) ......................................................................................................... 3
`Gabiola v. Sarid,
` 2017 WL 4264000 (N.D. Ill. Sep. 26, 2017) ........................................................................ 4
`Gionfriddo v. Major League Baseball,
` 94 Cal. App. 4th 400 (2001) ................................................................................................. 2
`In re Facebook, Inc., Consumer Privacy User Profile Litig.,
` 402 F. Supp. 3d 767 (N.D. Cal. 2019) ........................................................................... 4, 14
`In re Google, Inc. Privacy Policy Litig.,
` 2013 WL 6248499 (N.D. Cal. Dec. 3, 2013) ....................................................................... 4
`In re Google, Inc. Privacy Policy Litig.,
` 58 F. Supp. 3d 968 (N.D. Cal. 2014) ................................................................................. 15
`Jones v. Dirty World Entm’t Recordings LLC,
` 755 F.3d 398 (6th Cir. 2014) .............................................................................................. 10
`Jules Jordan Video, Inc. v. 144942 Canada Inc.,
` 617 F.3d 1146 (9th Cir. 2010) ...................................................................................... 12, 13
`La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,
` 624 F.3d 1083 (9th Cir. 2010) .............................................................................................. 7
`Low v. Linkedin Corp.,
` 2011 WL 5509848 (N.D. Cal. Nov. 11, 2011) ..................................................................... 6
`Lukis v. Whitepages,
` 454 F. Supp. 3d 746 (N.D. Ill. 2020) ............................................................................. 4, 10
`Maloney v. T3Media, Inc.,
` 853 F.3d 1004 (9th Cir. 2017) ...................................................................................... 12, 13
`Miller v. Collectors Univ.,
` 159 Cal. App. 4th 988 (2008) ............................................................................................... 6
`Monster Energy Co. v. Integrated Supply Network, LLC,
` 82 Fed. Appx. 730 (9th Cir. July 22, 2020) ......................................................................... 8
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`Newcombe v. Adolf Coors Co.,
` 157 F.3d 686 (9th Cir. 1998) ............................................................................................ 1, 2
`Perkins v. LinkedIn Corp.,
` 53 F. Supp. 3d 1190 (N.D. Cal. 2014) ....................................................................... 5, 6, 15
`Silha v. ACT, Inc.,
` 807 F.3d 169 (7th Cir. 2015) ................................................................................................ 4
`Slivinsky v. Watkins-Johnson Co.,
` 221 Cal. App. 3d 799 (1990) ............................................................................................ 1, 2
`Spokeo, Inc. v. Robins,
` 136 S. Ct. 1540 (2016) ......................................................................................................... 3
`Thane Int’l, Inc. v. Hartford Fire Ins. Co.,
` 2008 WL 11335049 (C.D. Cal. Mar. 15, 2008) ................................................................... 2
`Toney v. L’Oreal USA, Inc.,
` 406 F.3d 905 (7th Cir. 2005) .............................................................................................. 13
`Uzuegbunam v. Preczewski,
` 2021 WL 850106 (U.S. Mar. 8, 2021) ............................................................................. 3, 4
`
`Statutory Authorities
`47 U.S.C. § 230 ................................................................................................................... 1, 8, 9, 10
`47 U.S.C. § 230(a)(1) ...................................................................................................................... 10
`47 U.S.C. § 230(c)(1) ........................................................................................................................ 8
`Business Code § 17200 ................................................................................................................... 13
`Cal. Civ. Code § 3344 ............................................................................................. 4, 5, 6, 13, 14, 15
`Cal. Civ. Code § 3344(a) ................................................................................................................... 1
`
`Other Authorities
`McCarthy, The Rights of Publicity and Privacy 2d § 5.67 ............................................................... 8
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`PRELIMINARY STATEMENT
`Plaintiffs’ Opposition largely rehashes arguments this Court has already considered and
`rejected. The few “new” arguments plaintiffs raise do not alter this Court’s determinations that
`plaintiffs have not alleged an “injury in fact” for purposes of Article III standing, nor that their
`claims are barred by section 230 of the Communications Decency Act.
`Although the Court need not go further, the Opposition also provides no reasoned basis
`that any alleged use of the yearbook images is not preempted by the Copyright Act. And plaintiffs
`cannot show that, by providing another means to access already-public yearbook photos, Ancestry
`breached a privacy interest in “highly offensive” information.
`The amended complaint contains no material new facts, but rather plaintiffs seek to avoid
`dismissal through inconsequential variants on their legal arguments. Thus, the Complaint should
`now be dismissed with prejudice.
`
`I.
`
`ARGUMENT
`PLAINTIFFS STILL CANNOT ALLEGE A COGNIZABLE INJURY
`Plaintiffs devote the majority of their Article III arguments toward purported injuries that
`were addressed and rejected in this Court’s order granting Ancestry’s first motion to dismiss. See
`Opp. at 2-12. Plaintiffs offer no reason to reconsider the Court’s earlier determinations.
`First, plaintiffs contend they have addressed the “concerns” in the Court’s order by
`alleging a violation of California’s right of publicity statute “is itself injury,” and thus their “rights
`to privacy” were violated. Id. at 2-3. But the deficiency the Court identified was not the absence
`of rote legal assertions in plaintiffs’ complaint—rather, the Court correctly recognized a plaintiff
`must articulate a concrete injury beyond mere violation of the statute. ECF No. 30 at 8 (“the
`statute imposes liability only where ‘persons [are] injured as a result’” quoting Cal. Civ. Code §
`3344(a)). See also Slivinsky v. Watkins-Johnson Co., 221 Cal. App. 3d 799, 807 (1990)
`(“Resulting injury is the sine qua non of a cause of action for misappropriation of name”);
`Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998) (plaintiff’s own case recognizes
`a misappropriation “plaintiff must prove: (1) the defendant’s use of the plaintiff's identity; (2) the
`appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
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`(3) lack of consent; and (4) resulting injury.”) (quotation, citation omitted) (emphasis added).
`Plaintiffs have not (and cannot) identify any cases that purported to eliminate this requirement
`from the statute or abrogate California courts’ holdings that recognize this explicit injury
`requirement. See generally Opp. at 3-6. Instead, plaintiffs rely on courts’ determinations that
`violations of other statutes can give rise to Article III injury. Id. at 3-6 (citing cases involving
`CIPA, SCA, VPPA and TCPA violations). But, again, this Court already addressed and rejected
`these same arguments. ECF No. 30 at 8-9.1
`In support of this rehashed contention, plaintiffs once again misread Fraley to contend the
`court found a violation of section 3344 constitutes an injury “independent of whether the plaintiff
`alleges additional harms.” Opp. at 5 (citing Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 797
`
`
`1 Ancestry’s position is consistent with Davis v. Facebook, Inc., 956 F. 3d 589, 598 (9th Cir.
`2020) and Campbell v. Facebook, Inc., 951 F. 3d 1106, 1117-19 (9th Cir. 2020), which recognized
`the Wiretap Act, Stored Communications Act, California Invasion of Privacy Act and Electronic
`Communications Privacy Act protected “substantive” rights that can give rise to an Article III
`injury without further harm. Davis, 951 F.3d at 598 (“the legislative history and statutory text
`demonstrate that Congress and the California legislature intended to protect these historical
`privacy rights when they passed the Wiretap Act, SCA, and CIPA.”); Campbell, 951 F.3d at 1117-
`18 (“historical practice provides support not only for the conclusion that wiretapping is actionable,
`but also for the conclusion that a wiretapping plaintiff need not allege any further harm to have
`standing.”) (quotation, citation omitted). These cases show merely that “privacy torts do not
`always require additional consequences to be actionable.” Eichenberger v. ESPN, Inc., 876 F.3d
`979, 983 (9th Cir. 2017) (emphasis added). Other cases, however, make equally clear that the
`“right of publicity” is not among those for which a violation alone suffices to demonstrate a
`concrete injury. See, e.g., Slivinsky, 221 Cal. App. 3d at 807 (“Resulting injury is the sine qua non
`of a cause of action for misappropriation of name”); Newcombe, 157 F.3d at 692 (recognizing
`“resulting injury” as element of claim). It is easy to demonstrate why such distinctions make
`sense. A wiretapping claim, for example, involves intrusion upon affairs that are private, whereas
`the information at issue here is not private and the claim instead depends on how the information
`was used and the resulting consequences. Cf. ECF No. 30 at 7 & n. 12 (“the information in the
`Yearbook database is not private,” and recognizing “disclosure of public information alone is not a
`harm”). See also Thane Int'l, Inc. v. Hartford Fire Ins. Co., 2008 WL 11335049, at *6 (C.D. Cal.
`Mar. 15, 2008) (recognizing “the awkwardness of the ‘privacy’ label” because, for example,
`celebrities’ fame would be “inconsistent” with a claimed right to privacy, and noting it is “the
`nature of a plaintiff's injury” that distinguishes between the two types of misappropriation claims,
`both of which require injury, but of different types). Thus, although the common law “right of
`publicity” may have “derive[d] from the fourth category of invasion of privacy,” Gionfriddo v.
`Major League Baseball, 94 Cal. App. 4th 400, 409 (2001), both the statutory language and its
`common law background show it requires an actual injury—a violation alone is not enough.
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`(N.D. Cal. 2011)). However, the Fraley court did not end its inquiry with its determination
`plaintiffs had alleged a statutory violation—to do so would violate the Supreme Court’s dictate
`that “Article III standing requires a concrete injury even in the context of a statutory violation.”
`Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016), as revised (May 24, 2016). Rather, as this
`Court already reasoned, Fraley correctly went on to determine plaintiffs had alleged a “concrete
`injury” (not just a statutory violation) because they had a “property interest” in their endorsement
`of a product, which Facebook then appropriated for its own benefit. ECF No. 30 at 7-8
`(discussing Fraley). Plaintiffs here cannot rely on this theory of injury because, unlike in Fraley,
`“Ancestry’s use of the plaintiffs’ profiles does not imply an endorsement of Ancestry’s products
`or an equivalent interest.” Id. at 8.
`Plaintiffs also cite C.M.D. v. Facebook, Inc., 2014 WL 1266291 at *2 (N.D. Cal. Mar. 26,
`2014) for this same proposition. Opp. at 5. However, in C.M.D., the court determined “this action
`has more in common with Fraley than it does with Cohen. Both here and in Fraley, but not in
`Cohen, plaintiffs have alleged that their names and likeness are used to endorse third-party
`products[.]” Id. Thus, C.M.D. aligns precisely with the Court’s previous analysis. Further, the
`out-of-context snippet in C.M.D. from which plaintiffs quote (“a plaintiff may be able to establish
`constitutional injury in fact by pleading violation of a right conferred by statute”) was based on the
`Ninth Circuit’s decision in Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010), which was
`subsequently abrogated by the Supreme Court for this exact reason. Frank v. Gaos, 139 S. Ct.
`1041, 1046 (2019) (“Our decision in Spokeo abrogated the ruling in Edwards that the violation of
`a statutory right automatically satisfies the injury-in-fact requirement whenever a statute
`authorizes a person to sue to vindicate that right.”). See also C.M.D., 2014 WL 1266291 at *3
`(“Facebook asserts Edwards was simply ‘wrongly decided’ insofar as it endorses standing absent
`some actual injury beyond the mere fact of a statutory violation. Any argument that Edwards
`should be revisited must be presented to the Circuit court, not here.”).
`Finally, plaintiffs cite the Supreme Court’s recent decision in |Uzuegbunam v. Preczewski,
`2021 WL 850106, at *2 (U.S. Mar. 8, 2021) for the proposition the Court “found standing based
`on a purely legal injury,” but that mischaracterizes the case. Opp. at 6. Whether the plaintiff
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`suffered a “concrete injury” was not at issue—instead, the Court held the case was not mooted
`where the plaintiff maintained a claim for nominal damages to redress a past injury. Uzuegbunam,
`2021 WL 850106, at *3 (“There is no dispute that Uzuegbunam has established the first two
`elements” of standing).2
`Second, plaintiffs reprise an argument that their names had “provable commercial value”
`because Ancestry was (purportedly) able to profit from their use. Opp. at 8-12. Compare ECF
`No. 19 at 3-4 (plaintiff’s original opposition advanced these same arguments). This Court already
`correctly determined that the crux of the Article III inquiry is whether the plaintiff was harmed,
`not whether a defendant profited. ECF No. 30 at 7 (“Ancestry’s using the public profiles to solicit
`paying subscribers — standing alone — does not establish injury.”); In re Google, Inc. Privacy
`Policy Litig., 2013 WL 6248499, at *5 (N.D. Cal. Dec. 3, 2013) (“[A] plaintiff must do more than
`point to the dollars in a defendant’s pocket; he must sufficiently allege that in the process he lost
`dollars of his own.”);3 Silha v. ACT, Inc., 807 F.3d 169, 174-75 (7th Cir. 2015) (a “claim of injury
`
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`2 Plaintiffs’ “second” argument that their claims arise from the “use” of their names, not just
`the disclosure, is essentially a reboot of their argument a statutory violation, in and of itself, can
`give rise to Article III injury—they point to no purported injury resulting from such “use” beyond
`a claim the statute gave them the “right” to control such “use.” Opp. at 6-8. And once again, the
`additional cases they cite are not on point. Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1263
`(N.D. Cal. 2006) did not involve a claim for violation of section 3344, nor did it even address the
`issue of Article III standing. Likewise, Downing v. Abercrombie Fitch, 265 F.3d 994 (9th Cir.
`2001) was a “case involving a celebrity endorsement claim,” and (again) did not address the issue
`of Article III standing. Lukis v. Whitepages Inc., 454 F. Supp. 3d 746, 750 (N.D. Ill. 2020) also
`did not involve a claim for violation of section 3344, nor did it address the issue of Article III
`standing. And the same is true of Gabiola v. Sarid, 2017 WL 4264000, at *2 (N.D. Ill. Sep. 26,
`2017). This Court already determined there was no “use” of plaintiffs’ names here that could
`plausibly have caused a “concrete injury.” ECF No. 30 at 8 (“Ancestry’s use of the plaintiffs’
`profiles does not imply an endorsement of Ancestry’s products or an equivalent interest,” and
`“plaintiffs do not have a commercial interest in their public profiles that precludes Ancestry’s use
`of the profiles for commercial gain.”).
`3 Plaintiff relies on the distinction of this case raised by the court in In re Facebook, Inc.,
`Consumer Privacy User Profile Litig., 402 F. Supp. 3d 767, 786 (N.D. Cal. 2019). Opp. at 10.
`But that distinction does not touch on the proposition that “actual injury” under Article III requires
`plaintiff to be actually injured (not just that defendant profited). See In re Facebook, Inc., 402 F.
`Supp. 3d at 785-86. Rather, the court disagreed with the proposition that a plaintiff asserting a
`“privacy invasion” from the disclosure of private, personal information must demonstrate
`“economic harm.” Id. (emphasis added). The court did not purport to hold plaintiffs need not
`(footnote continued)
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`in fact cannot be based solely on a defendant’s gain; it must be based on a plaintiff’s loss”). Thus,
`plaintiffs’ assertions concerning the value of the information to Ancestry are irrelevant unless
`plaintiffs can allege some harm to themselves. They cannot. See ECF No. 30 at 7-9.
`Plaintiffs’ inability to establish independent value in their information differentiates the
`cases they invoke. Plaintiffs assert this Court “distinguished Fraley . . . because in Fraley the
`plaintiffs’ likenesses had ‘provable value’ evidenced by Facebook’s public statements about the
`important role user likenesses played in advertisements.” Opp. at 8. This Court rightly
`recognized that Fraley did not turn solely on the value of plaintiffs’ information to Facebook, but
`instead on plaintiffs’ own “asserted property interest in [their] endorsement”—something
`plaintiffs have not and cannot claim here. ECF No. 30 at 8. Likewise, in Davis, 956 F.3d 589, it
`was not the value of the information to the defendant that was determinative—rather, plaintiffs
`were able to allege they had a cognizable and valuable property interest in the information from
`which the defendant profited. Id. at 600 (“Plaintiffs allege that their browsing histories carry
`financial value. They point to the existence of a study that values users’ browsing histories at $52
`per year, as well as research panels that pay participants for access to their browsing histories.
`Plaintiffs also sufficiently allege that Facebook profited from this valuable data.”) (emphasis
`added). Here, plaintiffs have not and cannot point to any concrete value the publicly-available
`yearbook information had to plaintiffs, as opposed to Ancestry. See also Perkins v. LinkedIn
`Corp., 53 F. Supp. 3d 1190, 1210 (N.D. Cal. 2014) (“this case is no different than Fraley,” and
`likewise involved an “endorsement” theory, which the court determined “has a concrete and
`provable value”—“LinkedIn profits from this at the expense of its users.”) (emphasis added).
`Plaintiffs devote their remaining discussion on this point to straw arguments. Plaintiffs
`note the statutory language does not require them to plead an “endorsement” theory, nor that their
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`prove any harm. And, of course, this case does not involve the disclosure of private information.
`ECF No. 30 at 7 & n. 12 (“the information in the Yearbook database is not private: it is public
`yearbook information distributed to classmates (and ultimately to Ancestry). . . . disclosure of
`public information alone is not a harm”). Though plaintiffs’ theory of this case vacillates
`throughout their opposition, they appear to recognize this, contending “Ancestry’s mistaken
`reading of Section 3344 – under which the source information must be private prior to the
`defendant’s misappropriation – would turn the statute on its head.” Opp. at 7.
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`Case No. 3:20-cv-08437-LB
`REPLY ISO DEFENDANTS’ MOTION TO DISMISS FAC
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`Case 3:20-cv-08437-LB Document 39 Filed 05/10/21 Page 11 of 21
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`names had inherent commercial value. Opp. at 10-12. This misses the point. The statute does
`require actual injury (as does Article III), and these were merely examples of how other plaintiffs
`have done that—unlike plaintiffs here. The “endorsement” theory in Fraley and Perkins is one
`way to prove an injury. ECF No. 30 at 7 (“For example, standing can be established if the
`exploitation of users’ profiles suggests that the users personally endorse a product or service.”).
`Likewise, loss of commercial value in one’s name (for instance, as to fashion models or
`celebrities, whose names have provable commercial value) is another way to demonstrate injury.
`See id. at 8. Although those examples might not be exclusive, what a plaintiff cannot do is
`proceed on a theory of misappropriation that involves no injury at all, as plaintiffs attempt to do
`here. Id. at 7 (“Section 3344 cases suggest that more is needed beyond using the profiles.”).
`Third, plaintiffs assert their new theory of “mental anguish” suffices to demonstrate an
`actual injury. Opp. at 12-13. But the one case they cite demonstrates why that theory is
`implausible here. Plaintiffs quote Miller v. Collectors Univ., 159 Cal. App. 4th 988, 1006 n. 12
`(2008) for the proposition that “[a] plaintiff’s knowledge of possible commercial loss and/or
`defamation may be a component of mental harm, disturbing one’s peace of mind.” Opp. at 12-13.
`But plaintiffs here have not alleged a “commercial loss,” nor have they alleged they were in any
`way defamed by reproduction of their already-public yearbooks. Plaintiffs attempt to direct this
`inquiry at the “use” of their likenesses but cannot point to any “use” that could plausibly have
`caused “anguish.” Cf. Fairfield v. American Photocopy Equipment Co., 138 Cal. App. 2d 82
`(1955) (recognizing mental anguish might result where “[t]he advertisement necessarily carried
`the implication that plaintiff endorsed the machine and had permitted defendant to use his name as
`a lawyer in its advertisements. He had done neither,” and, as a result of the advertisement, “he had
`received telephone calls from other lawyers and . . . he had had conversations with other lawyers
`pertaining to the advertisement.”). Instead, plaintiffs have simply intoned the words “mental
`anguish,” without identifying circumstances that make that claimed injury plausible. See, e.g.,
`Low v. Linkedin Corp., 2011 WL 5509848 at *3 (N.D. Cal. Nov. 11, 2011) (where defendant used
`personal information to provide the information “to third parties, including advertisers, marketing
`companies, data brokers, and web tracking companies,” plaintiff’s claim of “embarrassment and
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`REPLY ISO DEFENDANTS’ MOTION TO DISMISS FAC
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`Case 3:20-cv-08437-LB Document 39 Filed 05/10/21 Page 12 of 21
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`humiliation” was insufficient for standing where plaintiff could not allege “what information was
`actually disclosed to third parties . . . would lead Plaintiff to suffer emotional harm,” such as
`“embarrassing details of his personal browsing patterns . . . linked to his identity by LinkedIn[.]”).
`Fourth, plaintiff Abraham claims the time he spent perusing Ancestry’s website in pursuit
`of these claims constitutes an “injury.” Opp. at 13. Notably, plaintiff Callahan does not allege the
`same, which highlights that it was entirely unnecessary for Abraham to do so and thus insufficient
`to fabricate an Article III injury. As shown in Ancestry’s motion (ECF No. 33 at 5-6), a plaintiff
`“cannot manufacture the injury by incurring litigation costs or simply choosing to spend money
`fixing a problem that otherwise would not affect the [plaintiff] at all.” La Asociacion de
`Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). Here,
`plaintiff Abraham would have to identify both a “problem” and some independent “injury” that
`would have resulted had he not chosen to spend five hours browsing the internet. See id. But he
`has not done so. Thus, his reliance on Adkins v. Facebook, Inc., 424 F. Supp. 3d 686, 691 (N.D.
`Cal. 2019) is misplaced—there, the plaintiff’s information was revealed in a data breach, resulting
`in “substantial risk of identity theft,” and he spent time responding to the breach as a result of that
`risk. Id. Here, plaintiff Abraham can identify no such risk he was attempting to mitigate. Were
`plaintiff Abraham’s investigation time sufficient to establish standing, every plaintiff could
`manufacture standing by citing time investigating and filing a lawsuit.
`Finally, plaintiffs claim they have “alleged theft of their intellectual property,” (Opp. at
`14), but no such allegation appears anywhere in their complaint. Setting aside that allegations
`outside the pleadings cannot be considered, this argument fails on the merits.

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