Kellman v. Spokeo, Inc.

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AVIVA KELLMAN, et al., Plaintiffs, v. SPOKEO, INC., Defendant.

No. 21-cv-08976-WHO

United States District Court, N.D. California

May 29, 2024

ORDER REGARDING CLASS CERTIFICATION

WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

Defendant Spokeo, Inc., (“Spokeo”) runs a website that collects consumer and public data from various public sources and private vendors, associates that data with particular names, and publishes it online. The plaintiffs here are Aviva Kellman, Jason Fry, Nicholas Newell, Susan Gledhill Stephens and William Williams V. They assert that their statutory rights of publicity and common law rights regarding misappropriation of name and likeness were and are being violated by Spokeo's publication of their personal information. They seek class certification against Spokeo for four classes of people in California and Ohio.^[1] For the following reasons, the motion is granted.

BACKGROUND

A. FACTUAL BACKGROUND

Much of the relevant case background was discussed in detail in my prior order addressing the defendant's motion to dismiss. (“Prior Order”) [Dkt. No. 41]. This Order assumes familiarity with the Prior Order and reproduces key facts, including those based on newly discovered evidence.

Spokeo is headquartered in Pasadena, California; it owns and operates the website spokeo.com. See Second Amended Complaint (“SAC”) [Dkt. No. 123] ¶ 58; Answer [Dkt. No. 129] ¶ 58. Spokeo collects data and information about the American adult public from public sources and data vendors. Deposition of Mike Daly (“Daly Depo.”) [Dkt. No. 91-8] 133:25134:1, 156:3-161:11.

Using proprietary algorithms and systems, Spokeo “attempt[s] to collect and aggregate and merge all that data into persons, person objects, which are then designated with a unique [personal identifier or ‘PID'] for that person object.” Id. 21:12-21. That aggregated data, associated with a particular PID, can then be searched for by users of the website. See id. 39:3-40:21. It is also used to populate “teaser profiles,” id. 22:18-21, which can be viewed by the public without a subscription to the website. Any visitor to spokeo.com can search for a specific teaser profile, using a name, phone number, address, or email. See, e.g., SAC ¶ 63. Each teaser profile contains at least a name and address. Daly Depo. 60:6-8.

The plaintiffs here each found a teaser profile associated with their personal information. See SAC ¶¶ 61, 77, 93, 109, 141. For example, the teaser profile for Kellman shows:

[Image Omitted]

[Image Omitted]

Id. ¶ 61.

The teaser profiles advertise additional personal information about the subject of the profile, including about their family, court records, sex offender registration status, marital status, and more. See id. ¶ 62. Visitors to spokeo.com can pay to access this additional information, including by paying for a single report or a subscription. See id. ¶¶ 66-67.

The plaintiffs say that they did not consent to Spokeo's use of their information on its website. See id. ¶¶ 60, 76, 92, 108, 140. Their theory of the case is that Spokeo unfairly and unlawfully profited by publishing their personal information in the teaser profiles, thereby enticing consumers to pay Spokeo so they could access additional information about people. Plaintiffs all say that they suffered emotional and mental injury stemming from this nonconsensual loss of control of their personal information. See id. ¶¶ 72-74, 88-90, 104-06, 121-22, 153-54. At least one distinct consumer viewed Stephens's profile and viewed Williams's profile prior to purchasing a subscription. Id. ¶¶ 116, 148.

As a result of these alleged injuries, the plaintiffs filed a class action in this court.

B. PROCEDURAL BACKGROUND

The plaintiffs filed their complaint in November 2021, [Dkt. No. 1], and their operative second amended complaint in September 2023, (“SAC”) [Dkt. No. 123]. Spokeo filed an answer.

(“Answer”) [Dkt. No. 129].

I previously denied Spokeo's motion to dismiss. (“Prior Order”) [Dkt. No. 41]; see also Kellman v. Spokeo, Inc., 599 F.Supp.3d 877 (N.D. Cal. 2022), motion to certify appeal denied, No. 3:21-CV-08976-WHO, 2022 WL 2965399 (N.D. Cal. July 8, 2022). I denied Spokeo's motion to certify the order for interlocutory appeal. [Dkt. No. 64].

Now the plaintiffs have filed their motion for class certification, seeking to certify two nationwide classes, two California classes, and two Ohio class. (“Mot.”) [Dkt. No. 91-3]; see also Supplement to Motion for Class Certification (“Mot. Suppl.”) [Dkt. No. 127]. Spokeo opposed. (“Oppo.”) [Dkt. No. 141-3]. The plaintiffs replied. (“Repl.”) [Dkt. No. 154-3].

Spokeo also moved to exclude the declaration and testimony of plaintiffs' expert, Michael Naaman. (“Naaman Mot.”) [Dkt. NO. 141-4]. The plaintiffs opposed. (“Naaman Oppo.”) [Dkt. No. 154-6]. Spokeo replied. (“Naaman Repl.”) [Dkt. No. 173-3].

Spokeo also moved to exclude the declaration and testimony of plaintiffs' expert, Steven Weisbrot. (“Weisbrot Mot.”) [Dkt. No. 173-4]. The plaintiffs opposed. (“Weisbrot Oppo.”) [Dkt. No. 152^[2]. Spokeo replied. (“Weisbrot Repl.”) [Dkt. No. 173-4].

The plaintiffs also filed a motion to exclude Spokeo's expert, David Alfaro. (“Alfaro Mot.”) [Dkt. No. 167-7]. Spokeo opposed. (“Alfaro Oppo.”) [Dkt. No. 175-3]. The plaintiffs replied. (“Alfaro Repl.”) [Dkt. No. 177-4].

Finally, Spokeo filed a motion to strike. (“Strike Mot.”) [Dkt. No. 168]. The plaintiffs filed an opposition. (“Strike. Oppo.”) [Dkt. No. 176].

I held a hearing at which counsel for both parties appeared.

LEGAL STANDARD

I. CLASS CERTIFICATION

Federal Rule of Civil Procedure 23 governs class actions. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663-64 (9th Cir. 2022) (en banc).

“[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis,'” that the requirements of Rule 23 are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011) (quoting Gen. Tel. Co. of SW v. Falcon, 457 U.S 147, 161 (1982)). “[P]laintiffs must prove the facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the evidence.” Olean, 31 F.4th at 665.

A “plaintiff[] must make two showings” to certify its purported class. Olean, 31 F.4th at 663. “First, the plaintiffs must establish ‘there are questions of law or fact in common to the class,' as well as demonstrate numerosity, typicality, and adequacy of representation.” Id. (quoting Fed. R. Civ. Proc. 23(a)).^[3] “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,'” and the “claims must depend upon a common contention.” Wal-Mart, 564 U.S. at 349-50 (quoting Falcon, 457 U.S. at 157).

“Second, the plaintiffs must show that the class fits into one of three categories” as provided in Rule 23(b). Olean, 31 F.4th at 663. Under Rule 23(b)(3), a class may be certified if “questions of law or fact common to class members predominate over the questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. Proc. 23(b)(3). In deciding this, courts consider:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Id.

Under Rule 23(b)(2), a class can be certified where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. Proc. 23(b)(2). To establish standing for prospective injunctive relief, a plaintiff must demonstrate that she “has suffered or is threatened with a concrete and particularized legal harm . . . coupled with a sufficient likelihood that [s]he will again be wronged in a similar way.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal quotation marks and citations omitted). A plaintiff must establish a “real and immediate threat of repeated injury.” Id. (internal quotation marks and citations omitted). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O 'Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

“[P]laintiffs must prove the facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied by a preponderance of the evidence. In carrying the burden of proving facts necessary for certifying a class under Rule 23(b)(3), plaintiffs may use any admissible evidence.” Olean, 31 F.4th at 665 (citing Tyson Foods v. Bouaphakeo, 577 U.S. 442, 454-55 (2016)). While the class-certification analysis “may entail some overlap with the merits of the plaintiff's underlying claim, Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 465-66 (2013) (internal citations and quotation marks omitted). “Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. (citation omitted).

In considering a motion for class certification, the substantive allegations of the complaint are accepted as true, but “the court need not...