Martinez v. ZoomInfo Techs.

82 F.4th 785

Kim Carter MARTINEZ, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. ZOOMINFO TECHNOLOGIES, INC., a Delaware corporation, Defendant-Appellant.

No. 22-35305

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 14, 2023 Seattle, Washington

Filed September 21, 2023

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, District Judge, Presiding, D.C. No. 3:21-cv-05725-MJP

Jeffrey A. Lamken (argued), Lucas M. Walker, Lauren M. Weinstein, and Jennifer E. Fischell, MoloLamken LLP, Washington, D.C.; Eugene A. Sokoloff, Jordan A. Rice, and Kenneth E. Notter III, MoloLamken LLP, Chicago, Illinois; Alexandra C. Eynon, MoloLamken LLP, New York, New York; Shon Morgan, Daniel C. Posner, and John W. Baumann, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, California; Cristina Henriquez, Quinn Emanuel Urquhart & Sullivan LLP, Redwood Shores, CA; for Defendant-Appellant.

Ben R. Osborn (argued), Law Office of Benjamin R. Osborn, Brooklyn, New York; Michael F. Ram and Marie N. Appel, Morgan & Morgan Complex Litigation Group, San Francisco, California; Sam Strauss

and Raina Borrelli, Turke & Strauss LLP, Madison, Wisconsin; for Plaintiff-Appellee.

Mark A. Lemley, Stanford Law School, Stanford, California; Rebecca Tushnet, Harvard Law School, Cambridge, Massachusetts; for Amicus Curiae Intellectual Property and First Amendment Law Professors.

John Nadolenco, Jennifer M. Chang, and Daniel D. Queen, Mayer Brown LLP, Los Angeles, California; Nicole A. Saharsky, Mayer Brown LLP, Washington, D.C.; Benjamin D. Bright, Mayer Brown LLP, New York, New York; for Amici Curiae Spokeo Inc., PeopleFinders LLC, and BeenVerified LLC.

Megan Iorio and Tom McBrien, Electronic Privacy Information Center, Washington, D.C.; Ellen Noble, Public Justice, Washington, D.C.; for Amici Curiae Electronic Privacy Information Center and Public Justice.

Before: M. Margaret McKeown and Roopali H. Desai, Circuit Judges, and Roslyn O. Silver,^* District Judge.

Opinion by Judge McKeown;

Concurrence by Judge McKeown;

Concurrence by Judge Desai

OPINION

McKEOWN, Circuit Judge:

Countless websites offer access to personal information, ranging from phone numbers to residence data, employment information, and more. One such website is ZoomInfo, an online directory of professionals and their employment information. Clicking on a ZoomInfo link in a search engine—or searching the ZoomInfo website itself for a specific professional—produces a redacted "teaser profile," offering the individual's name, employer, and job title. On the same page are links inviting the viewer to sign up for a trial subscription or subscribe to ZoomInfo to view the full profile.

Kim Martinez, a California citizen and political director for a local union, objects to ZoomInfo providing such a "teaser profile" of her information along with these subscription links. Her complaint asserts that, because ZoomInfo did not obtain her permission or compensate her, the directory is using her name and likeness to promote its product in violation of California's Right of Publicity statute and her common-law privacy and intellectual property rights.

In the district court, ZoomInfo moved to dismiss the complaint and to cut off the claims at the pleading stage under California's anti-SLAPP—strategic lawsuits against public participation—law, a statute that restricts suits aimed at repressing free speech. Cal. Civ. Proc. Code § 425.16. The district court denied the motion to dismiss and rejected ZoomInfo's special motion to strike the complaint under California anti-SLAPP statute.

At this stage, we have interlocutory jurisdiction solely with respect to the motion to strike. We do not address the district court's ruling on the motion to dismiss. We affirm the district court's denial of ZoomInfo's motion to strike under California's anti-SLAPP law.

BACKGROUND

ZoomInfo maintains a database of 125 million business professionals and their employment information. When someone searches for an individual professional, either through a search engine or on ZoomInfo's website, ZoomInfo displays a "teaser profile," which shows partially redacted information about the individual. The profile also includes several "buttons," offering "Get Access to [Name's] Full Info," "Get Email Address," "We have who you are looking for: View [Name's] Full Org-Chart," and "See more information about [Name]." Clicking on one of these buttons leads the user to a page detailing options to subscribe to ZoomInfo before viewing the individual's full profile. As pleaded, a paid ZoomInfo subscription costs a minimum of $10,000 annually. Alternatively, a user can register for the "Community Edition," a free subscription in which the subscriber provides ZoomInfo with the names and contact information of everyone with whom the subscriber has emailed.

Kim Martinez is the Political and Legislative Director of the American Federation of State, County, and Municipal Employees ("AFSCME"), Local 51, a labor union that represents public sector employees. ZoomInfo has a profile of Martinez in its database, and an internet search for Martinez reveals a teaser profile stating her job title, employment at AFSCME, the contact information for AFSCME's national headquarters, and the names and job titles of Martinez's colleagues.¹ The teaser profile includes the above-referenced subscription buttons offering full access to Martinez's profile to subscribers. Martinez, who has never used ZoomInfo, objects to "ZoomInfo using her name and personal information" without her consent "to advertise subscriptions to zoominfo.com."

Martinez filed suit in September 2021, on behalf of herself and a proposed class of California citizens whose information is included in ZoomInfo's directory and provided in teaser profiles. Her complaint asserts that ZoomInfo's use of the class's information to advertise subscriptions is a tortious misappropriation of their names and likenesses under California law and violates California's Right of Publicity Statute, California Civil Code § 3344. Martinez pleads that ZoomInfo's nonconsensual use has injured her and the class by unlawfully taking their intellectual property, invading their privacy rights, profiting from their names and information, and harming their peace of mind. Martinez seeks a declaration that ZoomInfo infringes on her state-law privacy and intellectual property rights, injunctive relief, restitution, and damages.

ZoomInfo moved to dismiss the complaint for lack of Article III standing under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). ZoomInfo also moved to strike Martinez's claims pursuant to California's anti-SLAPP statute, California Civil Procedure Code § 425.16. The district court denied ZoomInfo's motions to dismiss, finding Martinez had sufficiently pleaded her alleged injuries to have standing to sue and that the conduct alleged did not fall within the publicity statute's exception for "use of a name . . . or likeness in connection with any news [or] public affairs," Cal. Civ. Code § 3344(d). The district court also denied ZoomInfo's special motion to strike the complaint, holding that California's anti-SLAPP law did not require throwing out the case because the speech at issue is commercial in nature and therefore not protected under the statute and because Martinez showed a reasonable probability of prevailing on the merits of her claims. ZoomInfo filed a notice of appeal regarding the denial of its anti-SLAPP motion. In its briefing on appeal, ZoomInfo now asks us to decide not only the anti-SLAPP issue, but also to review the district court's ruling on whether Martinez has standing to bring this action.

ANALYSIS

I. Jurisdiction

The parties take polar opposite positions on whether this court has jurisdiction over Martinez's appeal. Neither is wholly correct. ZoomInfo raises two issues on interlocutory appeal: (1) whether the district court erred in denying ZoomInfo's anti-SLAPP motion; and (2) whether the district court erred in concluding that Martinez has standing to sue. Martinez asserts that we lack jurisdiction to review either issue. We conclude that we have appellate jurisdiction under the collateral order doctrine to review the anti-SLAPP issue and assure ourselves of our subject matter jurisdiction to reach that issue.

A. Jurisdiction Over Interlocutory Appeal of Anti-SLAPP Motion

In general, our jurisdiction is limited to appeals from a district court's final order. 28 U.S.C. § 1291. Under the collateral order doctrine, however, we may review a district court's ruling if it (1) is "conclusive," (2) "resolve[s] important questions separate from the merits," and (3) is "effectively unreviewable on appeal from the final judgment in the underlying action." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). Consistent with our precedent in Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003), we recently held that an order denying a motion to strike under an anti-SLAPP law is a collateral order subject to immediate interlocutory appeal. Langer v. Kiser, 57 F.4th 1085, 1104 (9th Cir. 2023). Accordingly, the district court's denial of ZoomInfo's anti-SLAPP motion is properly before us on appeal.

Martinez challenges our appellate jurisdiction on the ground that statutory exemptions remove this case from the scope of California's anti-SLAPP law. This is incorrect. As California law provides—and we have held—if a district court denies an anti-SLAPP motion based on one of the statutory exemptions, that denial may not be appealed. Cal. Civ. Proc. Code § 425.17(b)-(e); see also Breazeale v. Victim Servs., Inc., 878 F.3d 759, 765 (9th Cir. 2017). Here, the district court did not deny ZoomInfo's anti-SLAPP motion on the exemptions, but rather based on...