Kellman v. Spokeo, Inc.

Background

Spokeo operates a website that collects consumer and public data, associates it with names, and publishes it online. The plaintiffs—Aviva Kellman, Jason Fry, Nicholas Newell, Susan Gledhill Stephens, and William Williams V—alleged that Spokeo’s publication of their personal information violated California and Ohio statutory publicity rights, common-law rights against misappropriation of name or likeness, and California’s Unfair Competition Law. They alleged that they did not consent and suffered mental and emotional harm from losing control over their personal information.

The plaintiffs moved to certify classes under Federal Rule of Civil Procedure 23. The proposed classes covered California and Ohio residents whose Spokeo teaser profiles included a name and home address, including narrower classes whose profiles were viewed immediately before a subscription purchase. The plaintiffs withdrew their request to certify nationwide classes. The parties also filed motions concerning expert declarations and testimony and a motion to strike.

Class-Certification Analysis

The court held that the plaintiffs had Article III standing. It found that publication of their information, alleged loss of control over their identities, mental and emotional harm, and alleged profit by Spokeo were sufficient at the class-certification stage to show a concrete injury. The court stated that whether the publication caused legally sufficient harm and supported a remedy would be addressed at summary judgment. It also held that the plaintiffs had standing to seek injunctive relief because the alleged harm was ongoing and the record suggested that Spokeo’s opt-out process did not necessarily eliminate it.

The court found that the proposed classes satisfied Rule 23(a)’s requirements of numerosity, commonality, typicality, and adequacy. Each proposed class had many thousands of members. The court found common questions concerning Spokeo’s common process for collecting, associating, and publishing data; whether a person’s name and home address were enough to identify that person under the applicable law; whether Spokeo obtained consent before publication; and whether the alleged conduct caused legally sufficient injury. The court also found the named plaintiffs and their counsel adequate representatives.

Under Rule 23(b)(3), the court held that common questions predominated over individual questions and that a class action was superior to individual lawsuits. The court treated statutory damages as presenting a common legal question because the statutes prescribe the amount. It found that individualized issues, including some possible defenses, did not outweigh the central common questions. The court also certified the classes under Rule 23(b)(2), which applies when the defendant allegedly acted on grounds generally applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole.

The court amended each class definition. Instead of requiring a teaser profile to include merely “a name and home address,” the definition requires the profile to include “the individual’s name and home address.” The court stated that the parties would address at summary judgment whether a former address could support liability.

Expert and Strike Motions

The court denied Spokeo’s motion to exclude Michael Naaman’s declaration and testimony. It also denied Spokeo’s motion to strike Naaman’s supplemental reply declaration as moot because the court did not rely on that declaration in its class-certification analysis. Separately, the court denied Spokeo’s motion to exclude Steven Weisbrot’s declaration and testimony concerning class notice, finding his proposed notice methods sufficiently reliable and relevant at this stage.

The court denied the plaintiffs’ motion to exclude David Alfaro’s declaration and testimony as moot. It stated that it did not rely on Alfaro’s opinions for the challenged issues and declined to address some of the plaintiffs’ arguments about Alfaro’s methodology and qualifications at that stage.

Disposition

The plaintiffs’ motion for class certification was GRANTED for the California and Ohio classes, subject to the amendments to the class definitions. The nationwide-class request was withdrawn. Spokeo’s motions to exclude Naaman’s and Weisbrot’s declarations and testimony and to strike were DENIED. The plaintiffs’ motion to exclude Alfaro’s declaration and testimony was DENIED as moot. This order addressed class certification and related evidence issues, not the ultimate merits of whether Spokeo violated the plaintiffs’ rights.