Case 7:21-cv-08624-VB Document 25 Filed 02/07/22 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
` Case No. 7:21-cv-08624-VB
`
`FIRST AMENDED CLASS ACTION
`COMPLAINT
`
`JURY TRIAL DEMANDED
`
`
`
`
`JAMES WALLEN, ROYCE LADER, RITA
`FAHRNER, LEEANN BIDDIX, FRANK
`HIGHSMITH, JERRY HILL, HELEN
`KASSAMANIAN, and ERNEST BRANIGH,
`individually and on behalf of all others similarly
`situated,
`
`
`
`
`
`CONSUMER REPORTS, INC.
`
`
`
`
`
`Defendant.
`
`Plaintiffs,
`
`v.
`
`On behalf of themselves and all others similarly situated, Plaintiffs James Wallen, Royce
`Lader, Rita Fahrner, LeeAnn Biddix, Frank Highsmith, Jerry Hill, Helen Kassamanian, and
`Ernest Branigh (collectively, “Plaintiffs”) allege the following based upon personal knowledge
`as to themselves and their own acts, and upon information and belief as to all other matters based
`upon the investigation conducted by and through their attorneys. Plaintiffs believe that
`substantial evidentiary support exists for the allegations set forth herein.
`NATURE OF ACTION
`Defendant Consumer Reports, Inc. (“Consumer Reports” or “Defendant”)
`1.
`publishes Consumer Reports magazines.
`Defendant derives revenue in at least two ways: First, it sells subscriptions to its
`2.
`magazines to consumers; and second, it sells the identities of its magazine subscription
`consumers (“Data Brokerage Products”) to various third parties, including data miners, data
`aggregators, data appenders, data cooperatives, list rental recipients, list exchange recipients,
`and/or list brokers, among others (“Data Brokerage Clients”).
`The Data Brokerage Products that Consumer Reports sells, licenses, rents,
`3.
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`exchanges, and otherwise discloses to its Data Brokerage Clients contain its customers’ specific
`identities, including their full names, titles of magazine publications subscribed to, home
`addresses, and myriad other categories of individualized data such as each customer’s gender,
`ethnicity, and religion.
`By licensing, renting, exchanging, or otherwise disclosing—rather than only
`4.
`selling—its magazine subscribers’ identities, Consumer Reports is able to misappropriate (and
`profit from) their identities time and time again to countless third parties.
`Consumer Report’s disclosure of names and identities and other individualized
`5.
`information is not only unlawful but is also dangerous, because it provides malevolent actors
`with the tools needed to target particular members of society.
`By selling products to its Data Brokerage Clients comprised entirely of its
`6.
`magazine subscribers’ identities—without their consent—Defendant has violated, and continues
`to violate, statutes governing the misappropriation of individuals’ names, identities, and/or
`likenesses in the states of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington.
`PERTINENT STATUTORY SCHEMES
`
`I. Alabama
`The Alabama Right of Publicity Act states that: “any person or entity who uses or
`7.
`causes the use of the indica of identity of a person, on or in products, goods, merchandise, or
`services entered into commerce in this state, or for purposes of advertising or selling, or
`soliciting purchases of, products, goods, merchandise or services … without consent shall be
`liable under this article to that person, or to a holder of that person’s rights.” Ala. Code § 6-5-
`772(a) (the “Alabama Statute”).
`Indica of identity “include[s] those attributes of a person that serve to identify that
`8.
`person to an ordinary, reasonable viewer or listener, including, but not limited to, name,
`signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more
`of those attributes.” Ala. Code § 6-5-771(1).
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`II.
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`California
`California’s misappropriation of name or likeness statute, Cal. Civ. Code § 3344
`9.
`(the “California Statute”), states that: “Any person who knowingly uses another’s name … or
`likeness, in any manner, on or in products, merchandise, or goods … without such person’s prior
`consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be
`liable … to the injured party or parties in an amount equal to the greater of seven hundred fifty
`dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use[.]”
`Cal. Civ. Code § 3344 (the “California Statute”).
`Notably, California Civil Code Section 3344 was amended in 1984 to include the
`10.
`phrase (appearing in the statutory text quoted above) “on or in products, merchandise, or goods”
`as an additional way in which an unauthorized use of a person’s name or likeness violates the
`statute. See Stats. of 1984, Ch. 1704, §2 at 6172. In making this amendment, the California
`legislature sought to prohibit the use of a person’s name on or in a product, good, or piece of
`merchandise, rather than simply in an advertisement for another product or service. Comedy III
`Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 801-02 (Cal. 2001).
`III. Hawaii
`Hawaii’s misappropriation of name or likeness statute, Haw. Rev. Stat. Ann. §
`11.
`482P-1, et seq. (the “Hawaii Statute”), states that: “any person who uses or authorizes the use of
`a living … individual’s or personality’s name, … or likeness, on or in goods, merchandise, or
`services entered into commerce in this State … without express or implied consent of the owner
`of the right, has infringed a publicity right under this chapter.” Haw. Rev. Stat. Ann. § 482P-5.
`Indiana
`IV.
`12.
`Indiana’s misappropriation statute, IC 32-36-1-1, et seq. (the “Indiana Statute”),
`states that: “A person may not use an aspect of a personality’s right of publicity for a commercial
`purpose … without having obtained previous written consent.” IC 32-36-1-8(a).
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`Under the Indiana Statute, “commercial purpose” is defined as, inter alia, “the use
`13.
`of an aspect of a personality’s right of publicity … [o]n or in connection with a product,
`merchandise, goods, services, or commercial activities.” IC 32-36-1-2.
`Nevada
`V.
`Nevada’s misappropriation statute, Nev. Rev. Stat. Ann. § 597.770, et seq. (the
`14.
`“Nevada Statute”), states that: “There is a right of publicity in the name, voice, signature,
`photograph or likeness of every person. The right endures for a term consisting of the life of the
`person and 50 years after his or her death, regardless of whether the person commercially
`exploits the right during his or her lifetime.” Nev. Rev. Stat. Ann. § 597.790.
`Under the Nevada Statute: “Any commercial use by another of the name … of a
`15.
`person requires the written consent of that person or his or her successor in interest[.]” Nev.
`Rev. Stat. Ann. § 597.790.
`“Commercial use” includes “the use of the name, voice, signature, photograph or
`16.
`likeness of a person on or in any product, merchandise or goods or for the purposes of
`advertising, selling or soliciting the purchase of any product, merchandise, goods or service.”
`Nev. Rev. Stat. Ann. § 597.770.
`VI. Ohio
`Ohio’s misappropriation statute, Ohio Rev. Code § 2741.01, et seq. (the “Ohio
`17.
`Statute”), states that: “a person shall not use any aspect of an individual’s persona for a
`commercial purpose” unless “the person first obtains the written consent to use the individual’s
`persona[.]” Ohio Rev. Code §2741.02(A)-(B).
`The term “persona” is defined as “an individual’s name, voice, signature,
`18.
`photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial
`value.” Id. §2741.01(A).
`“‘Name’ means the actual, assumed, or clearly identifiable name of or reference
`19.
`to a living or deceased individual that identifies the individual.” Id.
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`“‘Commercial purpose’ means the use of or reference to an aspect of an
`20.
`individual's persona … [o]n or in connection with a place, product, merchandise, goods, services,
`or other commercial activities not expressly exempted under this chapter.” Id.
`VII. Washington
`21. Washington’s misappropriation statue, RCW 63.60.010, et seq. (the “Washington
`Statute”), establishes that in the state of Washington: “Every individual or personality has a
`property right in the use of his or her name, voice, signature, photograph, or likeness.” RCW
`63.60.010.
`Further, “Any person who uses or authorizes the use of a living or deceased
`22.
`individual’s … name … on or in goods, merchandise, or products entered into commerce in this
`state … without written or oral, express or implied consent of the owner of the right, has
`infringed such right.” RCW 63.60.050.
`Under the Washington Statute, “individual” means “a natural person, living or
`23.
`dead.” RCW 63.60.020.
`“Person” is defined as “any natural person, firm, association, partnership,
`24.
`corporation, joint stock company, syndicate, receiver, common law trust, conservator, statutory
`trust, or any other concern by whatever name known or however organized, formed, or created,
`and includes not-for-profit corporations, associations, educational and religious institutions,
`political parties, and community, civic, or other organizations.” Id.
`“Name” means the actual or assumed name, or nickname, of a living or deceased
`25.
`individual that is intended to identify that individual. Id.
`PARTIES
`Plaintiff Royce Lader is a citizen of Alabama who resides in Fort Payne,
`26.
`Alabama. Plaintiff Lader has been a subscriber of Consumer Reports magazine for over ten
`years.
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`Plaintiff Rita Fahrner is a citizen of California who resides in San Francisco,
`27.
`California. Plaintiff Fahrner has been a subscriber of Consumer Reports magazine for over
`twenty years.
`Plaintiff LeeAnn Biddix is a citizen of Hawaii who resides in Keaau, Hawaii.
`28.
`Plaintiff Biddix has been a subscriber of Consumer Reports magazine for over one year.
`Plaintiff Frank Highsmith is a citizen of Hawaii who resides in Honolulu, Hawaii.
`29.
`Plaintiff Highsmith has been a subscriber of Consumer Reports magazine for over fifteen years.
`Plaintiff Jerry Hill is a citizen of Indiana who resides in Terre Haute, Indiana.
`30.
`Plaintiff Hill has been a subscriber of Consumer Reports magazine for approximately two to
`three years.
`Plaintiff Helen Kassamanian is a citizen of Nevada who resides in Las Vegas,
`31.
`Nevada. Plaintiff Kassamanian has been a subscriber of Consumer Reports magazine for
`approximately six months.
`Plaintiff James Wallen is a citizen of Ohio who resides in Orrville, Ohio. Plaintiff
`32.
`Wallen has been a subscriber of Consumer Reports magazine for approximately five years.
`Plaintiff Ernest Branigh is a citizen of Washington who resides in Oak Harbor,
`33.
`Washington. Plaintiff Branigh has been a subscriber of Consumer Reports magazine for
`approximately seven years.
`Defendant Consumer Reports, Inc. is a New York not-for-profit corporation with
`34.
`its principal place of business at 101 Truman Avenue, Yonkers, NY 10703. Consumer Reports
`does business throughout Alabama, California, Hawaii, Indiana, Nevada, Ohio, Washington, and
`the rest of the United States.
`
`JURISDICTION AND VENUE
`The Court has subject-matter jurisdiction over this civil action pursuant to 28
`35.
`U.S.C. § 1332(d)(2)(A) because there are more than 100 members of each of the proposed
`Classes (defined below), the aggregate amount in controversy with respect to the claim alleged
`on behalf of each of the proposed Classes exceeds $5,000,000, exclusive of interest, fees, and
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`costs, and at least one member of each of the Classes (including each of the Plaintiffs) is a citizen
`of a state different from Defendant.
`The Court has personal jurisdiction over Defendant because Defendant maintains
`36.
`its corporate headquarters and principal place of business in this district.
`Venue is proper in this judicial District pursuant to 28 U.S.C. §1391 because
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`Defendant resides in and is subject to personal jurisdiction in this District.
`FACTS COMMON TO ALL CLAIMS
`Defendant directly sells its products and services to consumers in Alabama,
`38.
`California, Hawaii, Indiana, Nevada, Ohio, and Washington.
`Consumers can purchase subscriptions to Consumer Reports’ publications
`39.
`through the Internet, telephone, or mail. Regardless of how the consumer subscribes, Consumer
`Reports never requires the individual to read or agree to any terms of service, privacy policy, or
`agreement authorizing Defendant to use his or her name or any aspect of his or her identity on or
`in connection with its Data Brokerage Products or for any other commercial purposes.
`Consumer Reports maintains a vast digital database comprised of its customers’
`40.
`names, basic demographic information (e.g., home address), and magazine subscription histories
`and preferences.
`Consumer Reports discloses its magazine subscribers’ names and other
`41.
`identifying information, including but not limited to those subscribers’ home addresses, to data
`aggregators and appenders, which then provide Consumer Reports with supplemental
`information, such as—among many other possible data points—sex, age, race, and political
`party, about each Consumer Reports subscriber that they have separately collected.
`Consumer Reports then packages this information into its Data Brokerage
`42.
`Products that are sold, licensed, rented, exchanged, and otherwise disclosed to its various Data
`Brokerage Clients. On a per record basis, the information includes basic identifying information
`about each of Consumer Reports’ subscribers (name, address, magazines subscribed to, among
`other such details) along with additional information received from the data aggregators and
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`appenders discussed above.
`These Data Brokerage Products are offered for sale in, and, on information and
`43.
`belief, ultimately sold and entered into commerce throughout, Alabama, California, Hawaii,
`Indiana, Nevada, Ohio, and Washington, as well as elsewhere throughout the United States.
`Consumer Reports also discloses its Data Brokerage Products to data
`44.
`cooperatives, which in turn give Consumer Reports access to their own subscription list
`databases.
`Selling Data Brokerage Products comprised of its customers’ names and
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`subscriber information, as detailed above, constitutes a commercial use of its customers’
`identities on or in connection with goods, merchandise, or products under each of the
`aforementioned statutes.
`As the subjects of commercial transactions, the aspects of Plaintiffs’ identities that
`46.
`Defendant uses on or in connection with its products, services, or other commercial activities
`have significant commercial value.
`Because Consumer Reports does not seek its customers’ consent, written or
`47.
`otherwise, prior to using their names and identities on or in connection with its Data Brokerage
`Products, its customers remain unaware that their identities are being trafficked on the open
`market in this way.
`By using Plaintiffs’ and the Class members’ names and identities on and in
`48.
`connection with its Data Brokerage Products, without their prior consent, Defendant has directly
`violated (and continues to directly violate) the Alabama Statute, the California Statute, the
`Hawaii statute, the Indiana Statute, the Nevada Statute, the Ohio Statute, and the Washington
`Statute.
`Defendant has knowingly, intentionally, and willfully violated these statutes.
`49.
`Plaintiffs are informed and believe that, during the time period relevant to this action, Defendant,
`either directly or through one or more intermediaries acting on its behalf and at its direction,
`directed and oversaw the compilation and assembly of the Data Brokerage Products from its
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`customer database, the use of the names and identities of Plaintiffs and the members of the
`Classes on or in connection with such Data Brokerage Products, and the advertising and sales of
`such Data Brokerage Products to various third parties, including to its Data Brokerage Clients.
`Defendant has reaped, and continues to reap, significant profits from its nonconsensual sales of
`Data Brokerage Products containing the names and likenesses, personas, or identities, along with
`other personally identifying attributes of Plaintiffs and the members of the Classes.
`CLASS ACTION ALLEGATIONS
`Plaintiff Royce Lader seeks to represent a class defined as all Alabama residents
`50.
`who appear in any of Consumer Reports’ Data Brokerage Products (the “Alabama Class”).
`Plaintiff Rita Fahrner seeks to represent a class defined as all California residents
`51.
`who appear in any of Consumer Reports’ Data Brokerage Products (the “California Class”).
`Plaintiffs LeeAnn Biddix and Frank Highsmith seek to represent a class defined
`52.
`as all Hawaii residents who appear in any of Consumer Reports’ Data Brokerage Products (the
`“Hawaii Class”).
`Plaintiff Jerry Hill seeks to represent a class defined as all Indiana residents who
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`appear in any of Consumer Reports’ Data Brokerage Products (the “Indiana Class”).
`Plaintiff Helen Kassamanian seeks to represent a class defined as all Nevada
`54.
`residents who appear in any of Consumer Reports’ Data Brokerage Products (the “Nevada
`Class”).
`Plaintiff James Wallen seeks to represent a class defined as all Ohio residents who
`55.
`appear in any of Consumer Reports’ Data Brokerage Products (the “Ohio Class”).
`Plaintiff Ernest Branigh seeks to represent a class defined as all Washington
`56.
`residents who appear in any of Consumer Reports’ Data Brokerage Products (the “Washington
`Class”).
`Collectively, the classes are referred to as the “Classes.”
`57.
`58. Members of the Classes are so numerous that their individual joinder herein is
`impracticable. On information and belief, members of each of the Classes number in the
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`hundreds of thousands. The precise number of class members and their identities are unknown
`to Plaintiffs at this time but may be determined through discovery. Class members may be
`notified of the pendency of this action by mail and/or publication through the distribution records
`of Defendant and third-party retailers and vendors.
`Common questions of law and fact exist as to all class members and predominate
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`over questions affecting only individual class members. Common legal and factual questions
`include, but are not limited to:
`a. Whether Consumer Reports uses class members’ names, likenesses,
`personalities, personas, and other indica of identity on or in its Data
`Brokerage Products;
`b. Whether the conduct described herein constitutes a violation of Ala. Code
`§ 6-5-770, et seq.;
`c. Whether the conduct described herein constitutes a violation of Cal. Civ.
`Code § 3344;
`d. Whether the conduct described herein constitutes a violation of Haw. Rev.
`Stat. Ann. § 482P-1, et seq.;
`e. Whether the conduct described herein constitutes a violation of IC 32-36-
`1-1, et seq.;
`f. Whether the conduct described herein constitutes a violation of Nev. Rev.
`Stat. Ann. § 597.770, et seq.;
`g. Whether the conduct described herein constitutes a violation of Ohio Rev.
`Code § 2741.01, et seq.;
`h. Whether the conduct described herein constitutes a violation of RCW
`63.60.010, et seq.; and
`i. Whether Plaintiffs and the Classes are entitled to injunctive relief.
`The claims of the named Plaintiffs are typical of the claims of the Classes.
`Plaintiffs are adequate representatives of the Classes because their interests do not
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`conflict with the interests of the class members they seek to represent, they have retained
`competent counsel experienced in prosecuting class actions, and they intend to prosecute this
`action vigorously. The interests of class members will be fairly and adequately protected by
`Plaintiffs and their counsel.
`The class mechanism is superior to other available means for the fair and efficient
`62.
`adjudication of the claims of the Classes. Each individual class member may lack the resources
`to undergo the burden and expense of individual prosecution of the complex and extensive
`litigation necessary to establish Defendant’s liability. Individualized litigation increases the
`delay and expense to all parties and multiplies the burden on the judicial system presented by the
`complex legal and factual issues of this case. Individualized litigation also presents a potential
`for inconsistent or contradictory judgments. In contrast, the class action device presents far
`fewer management difficulties and provides the benefits of single adjudication, economy of
`scale, and comprehensive supervision by a single court on the issue of Defendant’s liability.
`Class treatment of the liability issues will ensure that all claims and claimants are before this
`Court for consistent adjudication of the liability issues.
`Defendant has acted or refused to act on grounds that apply generally to the
`63.
`Classes, so that final injunctive relief or corresponding declaratory relief is appropriate
`respecting the Classes as a whole.
`
`CLAIMS FOR RELIEF
`FIRST CLAIM FOR RELIEF
`Violation of Ala. Code § 6-5-770, et seq.
`(By Plaintiff Royce Lader, Individually and on Behalf of the Alabama Class)
`Plaintiff Royce Lader incorporates by reference and re-alleges herein all
`64.
`paragraphs alleged above.
`Plaintiff Lader brings this claim individually and on behalf of the members of the
`65.
`Alabama Class.
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`Ala. Code. § 6-5-770, et seq., prohibits an entity or individual from using another
`66.
`individual’s name or other indica of identity on or in its products, goods, merchandise, or
`services without the prior consent.
`Liability under the Alabama Right to Publicity is found “without regard as to
`67.
`whether the use is for profit or not for profit.”
`Plaintiff Lader and the Alabama Class members each subscribed to one or more
`68.
`of Defendant’s publications while residing in Alabama.
`As shown above, Defendant used Plaintiff Lader’s and the putative Alabama
`69.
`Class members’ names and indica of identity on or in its Data Brokerage Products without the
`consent of Plaintiff Lader or the Alabama Class members.
`Plaintiff Lader is domiciled and suffered injury in Alabama.
`70.
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`Defendant has sold these aspects of Plaintiff Lader’s and the Alabama Class’s
`indica of identities intentionally, willfully, and knowingly.
`Based upon Defendant’s violation of Ala. Code § 6-5-770, et seq., Plaintiff Lader
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`and members of the Alabama Class are entitled to (1) an injunction requiring Defendant to cease
`using Plaintiff Lader’s and members of the Alabama Class’s names and any indica of their
`identities on or in connection with its products, goods, merchandise, and/or services, (2) statutory
`damages in the amount of $5,000 per violation to Plaintiff Lader and the members of the
`Alabama Class, (3) an award of punitive damages or exemplary damages, and (4) an award of
`reasonable attorneys’ fees, court costs, and reasonable expenses under Ala. Code § 12-19-272(a).
`SECOND CLAIM FOR RELIEF
`Violation of Cal. Civ. Code § 3344
`(By Plaintiff Rita Fahrner, Individually and on Behalf of the California Class)
`Plaintiff Rita Fahrner incorporates by reference and re-alleges herein all
`73.
`paragraphs alleged above.
`Plaintiff Fahrner brings this claim individually and on behalf of the members of
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`the California Class.
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`Cal. Civ. Code § 3344 prohibits an entity or individual from using another
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`individual’s “name … or likeness, in any manner, on or in products, merchandise, or goods …
`without such person's prior consent[.]”
`Plaintiff Fahrner and the California Class members are each a natural person and
`76.
`thus a “person” within the meaning of Cal. Civ. Code § 3344(a).
`Plaintiff Fahrner and the California Class members each subscribed to one or
`77.
`more of Defendant’s publications while residing in California.
`At no time before or at the time Plaintiff Fahrner (or the members of the
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`California Class) purchased subscriptions to Defendant’s publications did Defendant notify any
`of them that it would use their name or identities “on or in products, merchandise, or goods” by
`selling Data Brokerage Products on or in which Defendant used their name or identities (or other
`personally identifying attributes, including home address and title of the publication subscribed
`to, gender, age, ethnicity, income, political party, religion, and charitable donation history). See
`§3344(a). Plaintiff Fahrner and the members of the California Class have never consented to
`Defendant using their names or identities “on or in products, merchandise, or goods.” See id.
`After Plaintiff Fahrner and the members of the California Class purchased
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`subscriptions to Defendant’s publications, and during the relevant statutory period, Defendant,
`either directly or through one or more intermediary acting on its behalf and at its direction,
`knowingly sold Data Brokerage Products containing their names and identities (among other
`identifying and highly sensitive personal information which, inter alia, identified each of them as
`an individual to whom Defendant had sold a subscription to a particular publication) to various
`third party Data Brokerage Clients, including data aggregators, data appenders, data
`cooperatives, and others, without first obtaining consent from (or even giving prior notice of
`these practices to) Plaintiff Fahrner or any member of the California Class.
`The Data Brokerage Products that Defendant knowingly sold and continues to
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`sell on the open market, to anyone interested in purchasing them, constitute “products,
`merchandise, or goods” within the meaning of Cal. Civ. Code § 3344(a).
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`Defendant knowingly “use[d]” and continues to “use” the names and identities
`81.
`of Plaintiff Fahrner and the other California Class members “on or in” such Data Brokerage
`Products. See id.
`Defendant’s unauthorized use of the names and identities of Plaintiff Fahrner
`82.
`and the other California Class members on its Data Brokerage Products, as alleged herein, did
`not constitute “use[s] of . . . name[s] . . . or likeness[es] in connection with any news, public
`affairs, or sports broadcast or account, or any political campaign[.]” Cal. Civ. Code §3344(d).
`By and through these actions, Defendant, either directly or through one or more
`83.
`intermediary acting on its behalf and at its direction, knowingly “use[d] another’s name . . . or
`likeness . . . on or in products, merchandise, or goods,” without such person[s’] prior consent,” in
`direct violation of § 3344(a).
`Plaintiff Fahrner and the other California Class members have been injured, in
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`California, from the violations of their rights of publicity that they suffered as a result of
`Defendant’s nonconsensual use of their names and identities in the manner described herein.
`Based upon Defendant’s violation of Cal. Civ. Code § 3344, Plaintiff Fahrner
`85.
`seeks: (1) $750.00 in statutory liquidated damages or actual damages, whichever is greater, as
`well as any profits from Defendant’s unauthorized uses of their and the California Class
`members’ names and identities that are attributable to such uses and are not taken into account in
`computing any actual damages, for themselves and each California Class member pursuant to
`§3344(a); (2) an award of punitive damages pursuant to §3344(a); (3) a declaration that
`Defendant’s conduct described herein violates §3344(a); (4) an injunction prohibiting Defendant
`from further using the names or identities of Plaintiff Fahrner or any of the California Class
`members on or in the Data Brokerage Products that it sells, and requiring Defendant to obtain
`prior consent from its California customers prior to doing so in the future; and (5) costs and
`reasonable attorneys’ fees pursuant to §3344(a).
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`THIRD CLAIM FOR RELIEF
`Haw. Rev. Stat. Ann. § 482P-1, et seq.
`(By Plaintiffs LeeAnn Biddix and Frank Highsmith, Individually and on Behalf of the
`Hawaii Class)
`Plaintiffs LeeAnn Biddix and Frank Highsmith incorporate by reference and re-
`86.
`allege herein all paragraphs alleged above.
`Plaintiff Biddix and Plaintiff Highsmith bring this claim individually and on
`87.
`behalf of the members of the Hawaii Class.
`Haw. Rev. Stat. Ann. § 482P-1, et seq., prohibits an entity or individual from
`88.
`using another individual’s “name … or likeness, on or in goods, merchandise, or services
`without prior consent.”
`Liability under the Hawaii Statute is found “without regard as to whether the use
`89.
`is for profit or not for profit.”
`Plaintiff Biddix, Plaintiff Highsmith, and the Hawaii Class members each
`90.
`subscribed to one or more of Defendant’s publications while residing in Hawaii.
`As shown above, Defendant used Plaintiffs Biddix and Highsmith’s and the
`91.
`putative Hawaii Class members’ names and identities on or in its Data Brokerage Products
`without the consent of Plaintiffs Biddix and Highsmith or the Hawaii Class members.
`Plaintiffs Biddix and Highsmith are domiciled and suffered injury in Hawaii.
`92.
`93.
`Based upon Defendant’s violation of Haw. Rev. Stat. Ann. § 482P-1, et seq.,
`Plaintiffs Biddix and Highsmith and members of the Class are entitled to (1) an injunction
`requiring Defendant to cease using Plaintiffs Biddix and Highsmith’s and members of the
`Hawaii Class’s names and any indica of their identities on or in connection with its goods,
`merchandise, or services, (2) statutory damages in the amount of $10,000 per violation to
`Plaintiffs Biddix and Highsmith and the members of the Hawaii Class, and (3) an award of
`reasonable attorneys’ fees, court costs, and reasonable expenses under Haw. Rev. Stat. Ann. §
`482P-6.
`
`
`15
`
`

`

`Case 7:21-cv-08624-VB Document 25 Filed 02/07/22 Page 16 of 22
`
`FOURTH CLAIM FOR RELIEF
`Violation of IC 32-36-1-1, et seq.
`(By Plaintiff Jerry Hill, Individually and on Behalf of the Indiana Class)
`Plaintiff Jerry Hill incorporates by reference and re-alleges herein all paragraphs
`94.
`alleged above.
`Plaintiff Hill brings this claim individually and on behalf of the members of the
`95.
`Indiana Class.
`IC 32-36-1-1, et seq. prohibits an entity or individual from using another
`96.
`individual’s “name” or “likeness” “[o]n or connection with a product, merchandise, goods,
`services or commercial activities.”
`Plaintiff Hill and the Indiana Class members each subscribed to one or more of
`97.
`Defendant’s publications while residing in Indiana.
`As shown above, Defendant used Plaintiff Hill’s and the putative Indiana Class
`98.
`members’ names and identities on or in its Data Brokerage Products without the consent of
`Plaintiff Hill or the Indiana Class members.
`Defendant has sold these aspects of Plaintiff Hill’s and the Indiana Class’s
`99.
`identities intentionally, willfully, and knowingly.
`100. As the subject of a commercial transaction, the aspects of Plaintiff Hill’s and the
`Indiana Class’s identities that Defendant uses on or in connection with its products, services, or
`other commercial activities have commercial value.
`101. Based upon Defendant’s violation of IC 32-36-1-1, et seq., Plaintiff Hill and
`members of the Indiana Class are entitled to (1) an injunction requiring Defendant to cease using
`Plaintiff Hill’s and members of the Indiana Class’s names and any aspects of their identities on
`or in connection with its products, goods, merchandise, services, and/or commercial activities (2)
`statutory damages in the amount of $1,000 per violation to Plaintiff Hill and the members of the
`Indiana Class, (3) an award of treble