Case 7:21-cv-08624-VB Document 47 Filed 12/09/22 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`JAMES WALLEN, ROYCE LADER, RITA
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`FAHRNER, LEEANN BIDDIX, FRANK
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`HIGHSMITH, JERRY HILL, HELEN
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`KASSAMANIAN, and ERNEST BRANIGH,
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`individually and on behalf of all others similarly
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`situated,
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`CONSUMER REPORTS, INC.,
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`Defendant.
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`Briccetti, J.:
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`Plaintiffs,
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`v.
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`OPINION AND ORDER
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`21 CV 8624 (VB)
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`Plaintiffs James Wallen, Royce Lader, Rita Fahrner, LeeAnn Biddix, Frank Highsmith,
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`Jerry Hill, Helen Kassamanian, and Ernest Branigh bring this putative class action against
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`defendant Consumer Reports, Inc., arising out of defendant’s practice of renting or exchanging
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`data about its subscribers to third parties for profit, including subscribers’ names, titles of
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`publications subscribed to, and home addresses. Plaintiffs claim this practice misappropriates
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`subscribers’ names, identities, or likenesses in violation of the right of publicity statutes of
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`Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington (together, the
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`“Misappropriation Statutes”).
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`Now pending is defendant’s motion to dismiss the first amended complaint (“Amended
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`Complaint” or “Am. Compl.”) under Rule 12(b)(6). (Doc. #28).
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`For the reasons set forth below, the motion is GRANTED.
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`The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(d).
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`BACKGROUND
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`For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-
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`pleaded allegations in the Amended Complaint and draws all reasonable inferences in plaintiffs’
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`favor, as summarized below.
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`Plaintiffs are residents of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and
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`Washington and subscribers to defendant’s Consumer Reports magazines. They allege
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`defendant provides information about subscribers, including their names, titles of publications
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`subscribed to, and home addresses, to other companies that aggregate this information with data
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`about the subscribers from other sources, such as sex, age, race, and political party. The
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`aggregated data is then returned to defendant (the “Subscriber Lists”), which defendant sells,
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`licenses, exchanges, or rents to third parties for a “significant” profit. (Am. Compl. ¶¶ 42, 49).
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`Defendant allegedly does not seek its subscribers’ consent before providing their names
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`and identities on the Subscriber Lists; thus, “customers remain unaware their identities are
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`being” disclosed. (Am. Compl. ¶ 47).
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`I.
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`Rule 12(b)(6) Standard of Review
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`DISCUSSION
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`In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the complaint
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`under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556
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`U.S. 662, 679 (2009).1 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals of the
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`elements of a cause of action, supported by mere conclusory statements,” are not entitled to the
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`assumption of truth and thus are not sufficient to withstand a motion to dismiss. Id. at 678;
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`Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
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`factual allegations, a court should assume their veracity and then determine whether they
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`plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
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`To survive a Rule 12(b)(6) motion, the complaint’s allegations must meet a standard of
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`“plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
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`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
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`“[A] district court may rely on matters of public record in deciding a motion to dismiss
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`under Rule 12(b)(6), including case law and statutes.” Pani v. Empire Blue Cross Blue Shield,
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`152 F.3d 67, 75 (2d Cir. 1998). Courts may also take judicial notice of legislative history
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`materials when ruling on motions to dismiss. See, e.g., Quick Cash of Westchester Ave. LLC v.
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`Vill. of Port Chester, 2013 WL 135216, at *5 (S.D.N.Y. Jan. 10, 2013) (bill jackets); Wang v.
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`Pataki, 356 F. Supp. 2d 445, 453 (S.D.N.Y. 2005) (same).
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`II.
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`Misappropriation Statutory Claims
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`Defendant argues the alleged disclosure of the Subscriber Lists is not a prohibited
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`commercial use under the Misappropriation Statutes.
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`The Court agrees.
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`A.
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`Statutes
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`Each of the Misappropriation Statutes prohibits certain commercial uses of names or
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`likenesses on or in a product, without consent.
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`The Alabama statute states:
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`[A]ny person or entity who uses or causes the use of the indicia of identity of a person, on
`or in products, goods, merchandise, or services entered into commerce in this state, or for
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`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.
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`Ala. Code § 6-5-772.
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`The California statute states:
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`Any person who knowingly uses another's name, . . . or likeness, in any manner, on or in
`products, merchandise, or goods, or for purposes of advertising or selling, or soliciting
`purchases of, products, merchandise, goods or services, without such person's prior
`consent, . . . shall be liable.
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`Cal. Civ. Code § 3344.
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`The Hawaii statute states:
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`[A]ny person who uses or authorizes the use of a[n]. . . individual’s or personality's name,
`. . . or likeness, on or in goods, merchandise, or services entered into commerce in this
`State, or for purposes of advertising products, merchandise, goods, or services, . . .
`without express or implied consent of the owner of the right, has infringed a publicity
`right under this chapter.
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`Haw. Rev. Stat. Ann. § 482P-5.
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`The Indiana statute states: “A person may not use an aspect of a personality’s right of
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`publicity for a commercial purpose during the personality’s lifetime . . . without having obtained
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`previous written consent.” Ind. Code § 32-36-1-8(a). Commercial purpose includes “the use of
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`an aspect of a personality's right of publicity as follows: (1) On or in connection with a product,
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`merchandise, goods, services, or commercial activities. (2) For advertising or soliciting
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`purchases of products, merchandise, goods, services, or for promoting commercial activities.”
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`Id. § 32-36-1-2.
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`The Nevada statute states:
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`1. There is a right of publicity in the name . . . or likeness of every person. The right
`endures for a term consisting of the life of the person . . . regardless of whether the person
`commercially exploits the right during his or her lifetime.
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`2. Any commercial use by another of the name . . . or likeness of a person requires the
`written consent of that person.
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`Nev. Rev. Stat. Ann. § 597.790. Commercial use under the statute encompasses “the use of the
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`name . . . or likeness of a person on or in any product, merchandise or goods or for purposes of
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`advertising, selling or soliciting the purchase of any product, merchandise, goods or service.” Id.
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`§ 597.770.
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`The Ohio statute states: “[A] person shall not use any aspect of an individual’s persona
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`for a commercial purpose . . . [d]uring the individual’s lifetime.” Ohio Rev. Code Ann. §
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`2741.02. A “persona” is defined as “an individual’s name . . .[or] likeness” if they “have
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`commercial value.” Id. § 2741.01. Commercial purpose is “the use of or reference to an
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`individual’s persona . . . [o]n or in connection with a place, product, merchandise, goods,
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`services.” Id.
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`The Washington statute states: “Every individual . . . has a property right in the use of
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`his or her name . . . or likeness.” Wash. Rev. Code § 63.60.010. Further, “[a]ny person who
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`uses or authorizes the use of a[n] . . . individual’s . . . name . . . or likeness, on or in goods,
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`merchandise, or products entered into commerce in this state” without consent “has infringed
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`such right.” Id. § 63.60.050.
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`For the reasons set forth below, plaintiff has not stated a claim for relief under any of the
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`Misappropriation Statutes.
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`B.
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`Infringing Commercial Use
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`Defendant advances four reasons why its alleged disclosures are not a proscribed
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`commercial use under the Misappropriation Statutes: (i) the subscribers’ names are not used to
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`sell, endorse, or draw attention to anything; (ii) the subscribers’ names were not used “on or in” a
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`product that is separate or distinct from the names themselves; (iii) selling the Subscriber Lists
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`does not infringe on plaintiffs’ property rights in their identities; and (iv) the names were never
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`used publicly.
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`Although the Court finds defendant’s first three arguments unpersuasive, the Court agrees
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`plaintiffs have not plausibly alleged their names were publicly used, as required by each
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`Misappropriation Statute at issue; thus, plaintiffs’ claims must be dismissed.
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`1.
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`Names Used to Sell a Product
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`Each of the Misappropriation Statutes requires the use of an individual’s name “on or in”
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`a product, good, or service. Here, plaintiffs allege defendant included their names, demographic
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`information, and contact information in Subscriber Lists that were then sold or rented to third-
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`party marketers.
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`Accordingly, plaintiffs’ allegations fit within the plain meaning of the Misappropriation
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`Statutes in that their names appear on or in a product sold by defendant.
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`2.
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`Separate or Distinct Product
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`The plain language of the Misappropriation Statutes proscribes the commercial use of a
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`person’s name “on or in” a product, good, or service. They do not, as defendant argues, require
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`that the name be on or in a separate product, good, or service. Two of the cases upon which
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`defendant relies concern the Illinois misappropriation statute, which is not at issue here, that does
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`not prohibit the use of someone’s identity “on or in” a product, and therefore, it is inapposite to
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`the Misappropriation Statutes. See Huston v. Hearst Commc’ns, Inc., 2022 WL 17097450, at *1
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`(7th Cir. Nov. 22, 2022); Dobrowolski v. Intelius, Inc., 2018 WL 11185289, at *1 (N.D. Ill. May
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`21, 2018). The third case on which defendant relies, Brooks v. Thomas Reuters Corp., is
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`unpersuasive because it does not discuss the California Misappropriation Statute’s “on or in”
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`language and contradicts binding California Supreme Court precedent regarding that provision.
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`2021 WL 3621837, at *4 (N.D. Cal. Aug. 16, 2021); see Kellman v. Spokeo, Inc., 2022 WL
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`1157500, at *9 (N.D. Cal. Apr. 19, 2022) (disagreeing with the finding in Brooks v. Thomson
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`Reuters Corp. that there is no misappropriation when the product is the name, likeness or
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`personal information), cert. for interlocutory appeal denied, 2022 WL 2965399 (N.D. Cal. July 8,
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`2022).
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`In Comedy III Productions, Inc. v. Gary Saderup, Inc., the California Supreme Court
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`analyzed the California Misappropriation Statute and issued the following binding holding:
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`We therefore give effect to the plain meaning of the statute: it makes liable any person
`who, without consent, uses a deceased personality's name, voice, photograph, etc., either
`(1) “on or in” a product, or (2) in “advertising or selling” a product. The two uses are not
`synonymous: in the apt example given by the Court of Appeal, there is an obvious
`difference between “placing a celebrity's name on a ‘special edition’ of a vehicle, and
`using that name in a commercial to endorse or tout the same or another vehicle.”
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`21 P.3d 797, 802 (Cal. 2001) (emphasis added). Thus, including plaintiffs’ names on the
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`Subscriber Lists is enough under the Misappropriation Statutes. There is no requirement that the
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`names be used “to draw attention to a separate product.” (Doc. #29 (“Def. Mem.”) at 14).
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`3.
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`Property Rights
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`The Misappropriation Statutes all safeguard a property right in an individual’s unique
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`identity.2 This is consistent with the misappropriation tort, which “is in the nature of a property
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`right.” Restatement (Second) of Torts § 652C cmt. a (Am. L. Inst. 1977).
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`2
`Ala. Code § 6-5-771 (right of publicity “is freely transferable and descendible . . . and
`shall be considered property” of a decedent’s estate); Cal. Civ. Code § 3344.1(b) (right of
`publicity for a decedent is a “property right[], freely transferable or descendible”); Haw. Rev.
`Stat. Ann. § 482P-2 (“Every individual or personality has a property right in the use of the
`individual’s or personality’s name” which “shall be freely transferable, assignable, and
`licensable”); Ind. Code. § 32-36-1-16 (right of publicity is a “property right[], freely transferable
`and descendible”); Ohio Rev. Code. Ann. §§ 2741.01(D), 2741.04 (right of publicity is a
`“property right” and “freely transferable and descendible”); Wash. Rev. Code § 63.60.010
`(“Every individual or personality has a property right in the use of his or her name” which “shall
`be freely transferable, assignable, and licensable.”). Nevada does not explicitly call the right of
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`Here, plaintiffs allege their names and other personal information were included on the
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`Subscriber Lists. Although plaintiffs have not alleged the public or third parties knew plaintiffs’
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`unique identities appeared on the Subscriber Lists before purchasing them, plaintiffs’ unique
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`identities were disclosed.
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`Consequently, the Court disagrees with defendant that plaintiffs need to allege
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`demonstrable value in their names to establish a violation of a property right protected by the
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`Misappropriation Statutes, and concludes plaintiffs plausibly allege the infringement of property
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`rights in their identities, which are protected by the Misappropriation Statutes.
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`4.
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`The “Public” Component of Publicity
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`Each of the Misappropriation Statutes requires a public commercial use of a person’s
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`name or identity for liability.
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`Specifically, five of the seven Misappropriation Statutes—those of Alabama, Hawaii,
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`Indiana, Nevada, and Ohio—define or reference the “right of publicity” or “publicity.” See Ala.
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`Code §§ 6-5-771; Haw. Rev. Stat. Ann. § 482P-5; Ind. Code § 32-36-1-8; Nev. Rev. Stat. Ann. §
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`597.790; Ohio Rev. Code Ann. § 2741.02. Moreover, relevant legislative history of the
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`California and Hawaii Misappropriation Statutes supports that publicity is a critical component
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`of each statute. (See, e.g., Doc. #36-2, Assemb. Republican Caucus Analysis, at 1 (Cal. 1984)
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`(“The California legislature enacted Civil Code § 3344 in 1971, codifying the right of publicity
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`and according statutory recognition to the previous common law evolution of that right.”
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`(emphasis added)); Doc. #36-1, S. 714, 31st Leg., Reg. Sess. (Haw. 2021) (mentioning
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`“publicity” nine times)). Regarding the Washington statute, that state’s Supreme Court has
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`publicity a property right. However, it states it is “freely transferable,” assignable, and
`descendible—implying it is a property right. See Nev. Rev. Stat. § 597.800.
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`recognized a common law right to privacy, see Reid v. Pierce County, 961 P.2d 333, 338–39
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`(Wash. 1998), including “[mis]appropriation,” Mark v. Seattle Times, 635 P.2d 1081, 1094
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`(Wash. 1981). And, as discussed below, publicity is a crucial component of the misappropriation
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`tort.
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`Nevertheless, plaintiffs assert there is no requirement that use of their identities be public
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`to be actionable because none of the Misappropriation Statutes explicitly mentions “public use.”
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`Rather, plaintiffs argue commercial use alone is sufficient.
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`The Court disagrees. By referencing “right of publicity” or “publicity” in enacting the
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`Misappropriation Statutes, the legislatures established a cause of action for the wrongful public
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`commercial use of a person’s name or identity. The common understanding of “publicity” is
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`“the quality or state of being public.” Publicity, Merriam-Webster’s Dictionary,
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`https://www.merriam-webster.com/dictionary/publicity (last visited Dec. 8, 2022). And “public”
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`means “exposed to general view.” Public, Merriam-Webster’s Dictionary, https://www.merriam
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`-webster.com/dictionary/public (last visited Dec. 8, 2022). Therefore, a right of publicity is the
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`right to protect against commercial use of a person’s identity through disclosure to the general
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`public, without the person’s consent.
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`This conclusion is reinforced by the common law misappropriation tort, under which
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`“[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to
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`liability to the other for invasion of his privacy.” Restatement (Second) of Torts § 652C. Public
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`use is essential:
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`The value of the plaintiff’s name is not appropriated by mere mention of it, or by
`reference to it in connection with legitimate mention of his public activities; . . . No one
`has the right to object merely because his name or his appearance is brought before the
`public, since neither is in any way a private matter and both are open to public
`observation. It is only when the publicity is given for the purpose of appropriating to the
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`defendant’s benefit the commercial or other values associated with the name or likeness
`that the right of privacy is invaded.
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`Id. cmt. d (emphasis added).
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`The publicity required by the misappropriation tort must be imputed to the
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`Misappropriation Statutes. Even when “publicity is not explicitly stated as an element per se, it
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`is still a fundamental requirement of the cause of action of wrongful appropriation of
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`personality.” J.R. v. Walgreens Boots Alliance, Inc., 470 F. Supp. 3d 534, 551 (D.S.C. 2020)
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`(dismissing a claim under South Carolina’s misappropriation statute where plaintiffs’ names
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`were included in a database available to affiliated companies, but not the general public), aff’d,
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`2021 WL 4859603 (4th Cir. Oct. 19, 2021) (per curiam) (unpublished opinion). “[I]nfringement
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`on the right of publicity and wrongful appropriation of personality are one in the same, meaning
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`publicity is required in a wrongful appropriation of personality claim.” Id. Further, under state
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`law in each of the relevant states, an abrogation of common law must be clear, unequivocal, or
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`explicit in a statute, which none of the Misappropriation Statutes at issue do.3 Indeed, legislative
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`3
`See Ivey v. Wiggins, 159 So. 2d 618, 620 (Ala. 1964) (“Legislative enactments in
`modification of the common law should be clear and such as to prevent reasonable doubt as to
`the legislative intent and of the limits of such change.”); Presbyterian Camp & Conf. Ctrs., Inc.
`v. Sup. Ct., 501 P.3d 211, 217 (Cal. 2021) (Generally, “unless expressly provided, statutes
`should not be interpreted to alter the common law, and should be construed to avoid conflict with
`common law rules. A statute will be construed in light of common law decisions, unless its
`language clearly and unequivocally discloses an intention to depart from, alter, or abrogate the
`common-law rule concerning the particular subject matter.”); Watson v. Brown, 686 P.2d 12, 15
`(Haw. 1984) (“A statutory remedy is, as a rule, merely cumulative and does not abolish existing
`common law remedy unless so declared in express terms or by necessary implication.”); Drake
`by Drake v. Mitchell Cmty. Schs., 649 N.E.2d 1027, 1030 (Ind. 1995) (“Absent express
`declaration or unmistakable implication, statutes will not be interpreted as changing the common
`law.”); Bresnik v. Beluah Park Ltd., 617 N.E.2d 1096, 1098 (Ohio 1993) (“Statutes are to be
`read and construed in the light of and with reference to the rules and principles of the common
`law in force at the time of their enactment, and in giving construction to a statute the legislature
`will not be presumed or held[] to have intended a repeal of the settled rules of the common
`law unless the language employed by it clearly expresses or imports such intention”); First Fin.
`Bank v. Lane, 339 P.3d 1289, 1293 (Nev. 2014) (“This court will not read a statute to abrogate
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`materials associated with certain of the Misappropriation Statutes proclaim they do not disrupt
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`the common law misappropriation tort. (See Doc. #17-1, Bill Analysis, 1999 S.B. 54 (Ohio
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`1999) (noting that “the act does not abrogate the common law relating to privacy as recognized
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`by the Ohio courts.”); Doc. #36-1 (Hawaii legislative history noting the Misappropriation Statute
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`is “codifying the right of publicity and according statutory recognition to the previous common
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`law evolution of that right.”)).
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`Courts have also recognized the similarities between the common law misappropriation
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`tort and misappropriation statutes, including some of the Misappropriation Statutes at issue here.
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`See, e.g., Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) (“Under
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`[California Civil Code] section 3344, a plaintiff must prove all the elements of the common law
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`cause of action.”); see generally Farris v. Orvis Co., 2022 WL 10477051 (D. Vt. Oct. 18, 2022)
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`(noting similarities between California, Illinois, and Ohio misappropriation statutes and
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`common-law causes of action). Other courts have relied on the Restatement in declining to find
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`tortious misappropriation in the absence of public use when individuals’ names were included in
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`customer lists. See, e.g., Shibley v. Time, Inc., 341 N.E.2d 337, 339 (Ohio Ct. App. 1975)
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`(magazine did not commit misappropriation by renting and selling subscriber lists because the
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`tort “refers to those situations where the plaintiff's name or likeness is displayed to the public”
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`and the “activity complained of here does not fall within that classification”); see generally Farris
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`v. Orvis Co., 2022 WL 10477051.
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`the common law without clear legislative instruction to do so.”); King Cnty. v. Vinci Constr.
`Projects/Parsons RCI/Frontier-Kemper, JV, 398 P.3d 1093, 1098 (Wash. 2017) (en banc) (“[W]e
`will not deviate from the common law unless the language of a statute be clear and explicit for
`this purpose.”).
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`Critically, plaintiffs do not claim the Subscriber Lists were publicly available. Plaintiffs
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`allege the names on the Subscriber Lists are disclosed to third parties who rent, exchange, or
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`purchase the Subscriber Lists. Plaintiffs’ purported reading of the Misappropriation Statutes
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`ignores the “rationale for an anti-publicity statute in the first instance. The right of publicity
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`does not protect someone’s name in and of itself.” Farris v. Orvis Co., 2022 WL 10477051, at
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`*5. “The rationale for protecting the right of publicity is the straightforward one of preventing
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`unjust enrichment by theft of good will” that plaintiffs could otherwise have employed for their
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`own uses and profits. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576 (1977).
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`Here, a member of the public would not know any of the individuals whose names appear
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`on the Subscriber Lists unless they purchased the Subscriber Lists. (Def. Mem. at 14 (“There
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`was no ‘James Wallen List,’ for example, nor did any ‘Data Brokerage Client’ ever know that
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`James Wallen’s name would be on a list it rented.”)). This is distinct from cases in which a
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`member of the general public pays for access to a subscriber list or similar database because,
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`before purchase, they specifically know which individuals’ information is available. See
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`Kellman v. Spokeo, Inc., 2022 WL 1157500, at *6, **8–9 (plaintiffs plausibly alleged
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`misappropriation under California, Indiana, and Ohio Misappropriation Statutes when plaintiff
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`pleaded the public could “use Spokeo's service to find specific names” because “if they type [a
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`plaintiff’s] name, his ‘teaser’ is one result”). Indeed, one cannot visit defendant’s website and
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`see the Subscriber Lists. Classifying this limited, private disclosure only to the third parties who
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`purchase the Subscriber Lists as publicity would transform the Misappropriation Statutes into
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`sweeping data privacy laws.
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`Drawing all reasonable inferences in plaintiffs’ favor, the Court finds plaintiffs have not
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`plausibly alleged the Subscriber Lists publicly used their names and information. Accordingly,
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`plaintiffs’ claims must be dismissed.
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`CONCLUSION
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`The motion to dismiss is GRANTED.
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`The Clerk is instructed terminate the motion (Doc. #28) and close this case.
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`Dated: December 9, 2022
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`White Plains, NY
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`SO ORDERED:
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`____________________________
`Vincent L. Briccetti
`United States District Judge
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`13
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