Kis v. COGNISM INC.
- Martinez-Olguin
- 3:22-cv-05322
- U.S. District Court · Northern District of California
- 12
In Kis v. Cognism Inc., Judge Martinez-Olguin partly granted and partly denied Cognism’s dismissal motion, dismissing some privacy claims and allowing others to proceed.
Nicholas Kis and the proposed class may continue the right-of-publicity, common-law misappropriation, and unfair-competition claims. The Sections 632 and 637 privacy claims were dismissed without leave to amend, while the Section 631 claim may be amended.
What happened
Nicholas Kis sued Cognism Inc. for allegedly using his personal information, name, likeness, and persona to promote its sales-prospecting website, and for allegedly intercepting email information. He brought claims under California’s right-of-publicity law, California privacy law, the common-law rule against using someone’s identity without permission, and California’s unfair-competition law.
The court found that Kis had shown a sufficient personal injury for the federal court to hear his case. It rejected Cognism’s arguments that Kis’s claims were not connected to Cognism’s conduct. The court also found that Kis had adequately alleged the right-of-publicity, common-law misappropriation, and unfair-competition claims, but had not adequately alleged that Cognism collected the substantive contents of emails for his privacy claim.
The court dismissed the California privacy claims based on Sections 632 and 637 without leave to amend, and dismissed the Section 631 claim with leave to amend. It denied dismissal of the right-of-publicity, common-law misappropriation, and unfair-competition claims. Judge Araceli Martinez-Olguin required any amended complaint to be filed by September 23, 2024.
The detailed version
- Kis v. COGNISM INC. · No. 3:22-cv-05322
- Martinez-Olguin
- Aug. 23, 2024
Background
Cognism operates cognism.com, a business-to-business sales-prospecting website containing information about millions of professionals. According to the complaint, Cognism collects community-sourced information through software installed on subscribers’ computers that automatically captures incoming and outgoing emails and information from email signature blocks. The complaint also alleged that Cognism used Kis’s name, likeness, photographs, persona, and other personal information in advertisements and free trials for its subscriptions.
Kis sued on behalf of himself and a proposed class. He asserted claims under California’s statutory right-of-publicity law, California’s Invasion of Privacy Act, the common-law prohibition on misappropriating a person’s name or likeness, and California’s Unfair Competition Law. Cognism moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Kis lacked standing, and under Rule 12(b)(6), arguing that the complaint failed to state legally sufficient claims.
Standing
The court rejected Cognism’s challenge to Kis’s standing, meaning his ability to bring the claims in federal court. The court concluded that the alleged use of Kis’s name, likeness, and persona, invasion of privacy, loss of control over commercial use of his identity, and Cognism’s alleged profit from that use were sufficiently concrete injuries. The court also concluded that the alleged injuries were fairly traceable to Cognism’s conduct.
The court did not rely on allegations concerning the Kaspr browser extension because Cognism submitted evidence that Kaspr was owned by Cognism Ltd., which was not a party, and the complaint did not allege that Cognism and Cognism Ltd. were legally the same entity.
Right of Publicity and Common-Law Misappropriation
The court denied the motion to dismiss Kis’s statutory right-of-publicity and common-law misappropriation claims. Kis alleged that Cognism used his identity without consent in connection with a free trial that gave potential subscribers limited access to profiles and encouraged them to purchase subscriptions. The court found those allegations sufficient at the pleading stage to allege commercial use of Kis’s identity for Cognism’s advantage.
The court rejected Cognism’s argument that Kis’s identity had not been used in advertising because Cognism did not use a separate “teaser profile.” It concluded that the alleged limited-access free trial could serve a promotional purpose and was sufficient to support these claims.
California Invasion of Privacy Act
Kis asserted claims under Sections 631, 632, and 637 of California’s Invasion of Privacy Act. Because Kis did not oppose Cognism’s arguments concerning Sections 632 and 637, the court treated those claims as conceded and dismissed them without leave to amend.
The court dismissed the Section 631 claim with leave to amend. Kis alleged that Cognism’s software intercepted emails while they were being sent or received, which was enough to allege that the communications were captured while “in transit.” But the court found that Kis had not adequately alleged that Cognism collected the substantive contents of the emails. The court concluded that the complaint’s allegations about collecting email signature blocks did not sufficiently establish that Cognism collected communication content rather than identifying or other record information.
Unfair Competition Law
The court denied the motion to dismiss Kis’s Unfair Competition Law claim. Such a claim requires an economic injury involving lost money or property. The court concluded that Kis adequately alleged economic injury by claiming that Cognism used and profited from his personal information, name, likeness, and persona without compensation.
Disposition
The court denied the motion to dismiss the common-law misappropriation and statutory right-of-publicity claims. It also denied the motion to dismiss the Unfair Competition Law claim. The court dismissed the California Invasion of Privacy Act claims under Sections 632 and 637 without leave to amend and dismissed the Section 631 claim with leave to amend. Any amended complaint had to be filed by September 23, 2024, and no additional parties or claims could be added without court permission or Cognism’s agreement.
Judge Araceli Martinez-Olguin issued the order on August 23, 2024.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.