Background
PeopleConnect operates Classmates.com, an online library of digitized yearbooks. Alicia Nolen, a California resident whose name and photograph appeared in a yearbook available on the site, alleged that PeopleConnect used students’ names without consent to promote paid Classmates.com subscriptions, violating California’s statutory right of publicity, Cal. Civ. Code § 3344.
Nolen pursued a “searchable” theory: that PeopleConnect’s inclusion of a person’s name in its searchable yearbook database was itself a commercial use connected to its subscription advertising. The district court certified damages and injunctive classes of certain California residents whose names yielded results in searches of qualifying California yearbooks and who had not registered for Classmates.com or donated a yearbook. PeopleConnect obtained Rule 23(f) review.
The Court’s Holding
The Ninth Circuit affirmed. It held that the district court did not abuse its discretion in finding predominance under Rule 23(b)(3). Whether making a name searchable is sufficiently connected to advertising under § 3344 is a merits question under Nolen’s theory, not a reason to deny certification where the class will prevail or fail together based on common evidence.
The court also held that Nolen had shown the injury element could be addressed with common proof at the certification stage. The district court permissibly inferred that, if PeopleConnect used class members’ names directly in connection with advertising, those names had at least nominal economic value and their unauthorized use caused economic injury. Section 3344 permits a minimum $750 award even without proof quantifying actual damages.
PeopleConnect’s asserted consent, identifiability, registration, donation, and searchability concerns did not require a different result. The court found the company had not substantiated predominance-threatening individualized defenses and held that member-identification issues could be handled through later claims administration, including self-certification and database cross-checks. The court further rejected the challenge to Nolen’s adequacy as representative of the injunctive class; PeopleConnect could not defeat adequacy by suppressing her name after suit began. It did not decide a separately raised intraclass-conflict argument concerning members whose names had actually been searched, but provided guidance if that issue is properly raised below.
Key Takeaways
- A Rule 23 certification appeal is not the occasion to decide whether common evidence will ultimately prove the merits of a classwide theory.
- Potentially individualized membership and claims-administration issues do not alone defeat certification in the Ninth Circuit.
- A defendant’s post-suit suppression of the named plaintiff’s information does not make her inadequate to represent an injunctive class.
Why It Matters
The decision reinforces the Ninth Circuit’s distinction between a classwide failure of proof and a lack of predominance. A defendant may later challenge the merits of a common liability theory, but cannot obtain decertification merely because it believes the common evidence is insufficient to establish liability.
For California right-of-publicity litigation involving online databases and advertising, the ruling allows a class to proceed on a searchable-identity theory without resolving at certification whether that theory ultimately satisfies § 3344’s direct-connection requirement.