Brooks v. Thomson Reuters Corporation

Background

Cat Brooks and Rasheed Shabazz alleged that Thomson Reuters aggregates public and non-public information into detailed dossiers and sells them to customers through its CLEAR platform. The alleged information included names, photographs, criminal histories, relatives, associates, financial information, employment information, location data, booking information, and other personal details. The plaintiffs alleged that Thomson Reuters sold this information without their knowledge or consent. They also alleged that CLEAR included inaccurate information about Shabazz.

The plaintiffs filed a proposed class action asserting four California-law causes of action: common-law right of publicity, monetary relief under the California Unfair Competition Law (UCL), unjust enrichment, and injunctive relief under the UCL. Thomson Reuters removed the case to federal court under the Class Action Fairness Act and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). It also moved to stay discovery while the dismissal motion was pending.

Right of Publicity

The court explained that California’s right of publicity protects against commercial appropriation of a person’s name or likeness. The plaintiffs argued that Thomson Reuters used their identities by creating and posting the CLEAR dossiers. The court agreed that the complaint plausibly alleged “use” because Thomson Reuters—not merely third parties—created and posted the dossiers.

The court nevertheless held that the plaintiffs failed to plausibly allege appropriation of their names or likenesses for a commercial advantage. The court distinguished cases involving names or images used to advertise or promote a separate product or service. Here, the court reasoned, the plaintiffs’ names, likenesses, and personal information were allegedly the product sold to CLEAR subscribers, not material used to promote another product or service. The court therefore granted the motion to dismiss the right-of-publicity claims. It did not need to decide Thomson Reuters’ First Amendment and newsworthiness arguments after reaching that conclusion.

California Unfair Competition Law

The plaintiffs’ UCL claim under the unlawful-practice prong was based entirely on their right-of-publicity theories. Because the court found those theories inadequately pleaded, it also granted the motion to dismiss the unlawful-practice portion of the UCL claim.

The court denied the motion as to the unfair-practice portion. It rejected Thomson Reuters’ argument that the California Consumer Privacy Act (CCPA) automatically permitted the alleged sales whenever consumers had an opportunity to opt out. The court noted that the CCPA can be harmonized with broader privacy protections under the UCL and that the complaint alleged the CLEAR opt-out process was difficult to find and required users to provide photographs of government identification and their faces. At the pleading stage, those allegations could support a finding that the opt-out process itself was unfair.

The court also held that the alleged sale of the plaintiffs’ personal information plausibly qualified as unfair under both the balancing test, which weighs consumer harm against the usefulness of the practice, and the tethering test, which connects the alleged unfairness to a legislatively declared policy. The court described the alleged privacy harm as substantial and concluded that the issue was not suitable for resolution on the pleadings.

The court denied the motion to dismiss the plaintiffs’ request for an injunction under the UCL. It distinguished restitution for past harm from an injunction addressing future harm and concluded that money damages might not adequately remedy continuing invasions of privacy.

Unjust Enrichment

The court rejected Thomson Reuters’ argument that unjust enrichment could not be asserted as an independent claim. Relying on Ninth Circuit and California authority discussed in the opinion, the court concluded that the plaintiffs could pursue a standalone unjust-enrichment claim. The motion to dismiss that claim was therefore denied.

Communications Decency Act

The court rejected Thomson Reuters’ argument that Section 230 of the Communications Decency Act immunized it from liability. The court explained that the statute generally protects interactive computer services from liability for content created by another information provider. It concluded that the plaintiffs were challenging Thomson Reuters’ creation and sale of the CLEAR dossiers, not its decisions about whether to publish or remove third-party content. Because Thomson Reuters allegedly generated the dossiers, the court found Section 230 inapplicable.

Anti-SLAPP Argument

The court also rejected Thomson Reuters’ motion under California’s anti-SLAPP statute, which can require early dismissal of claims arising from protected speech or petitioning activity. The court concluded that Thomson Reuters did not show at the first step that the challenged conduct involved speech connected to a public issue. The CLEAR platform required payment, and the alleged sale of private personal information to subscribers was characterized as a private exchange rather than speech on a matter of public concern. The court therefore did not need to analyze the second step of the anti-SLAPP test.

Disposition

Judge Edward M. Chen granted in part and denied in part Thomson Reuters’ motion to dismiss. The order dismissed the right-of-publicity claims and the UCL claims under the unlawful-practice prong, while allowing the UCL unfair-practice claim, the request for injunctive relief, and the unjust-enrichment claim to proceed. The court also denied as moot Thomson Reuters’ motion to stay discovery.