Krause v. RocketReach, LLC

                 IN THE UNITED STATES DISTRICT COURT                      
              FOR THE NORTHERN DISTRICT OF ILLINOIS                       
                        EASTERN DIVISION                                  


Aimee Krause, individually and  )                                         
on behalf of all others        )                                          
similarly situated             )                                          
                               )                                          
     Plaintiff,                )                                          
                               )                                          
     v.                        )   No. 21 CV 1938                         
                               )                                          
RocketReach, LLC, a Wyoming    )                                          
limited liability company      )                                          
                               )                                          
     Defendant.                )                                          
                               )                                          

                  Memorandum Opinion and Order                            
    The class action complaint in this case alleges that defendant        
RocketReach,  which  owns  and  operates  a  website  offering  paid       
subscription  access  to  “the  world’s  largest  and  most  accurate      
database of emails and direct dials,” Compl. at ¶ 13, violates the         
Illinois  Right  of  Publicity  Act,  765  ILCS  1075/10,  by  using       
plaintiff’s  and  the  class  members’  identities  for  a  commercial     
purpose  without  their  consent.  Specifically,  defendant  allegedly     
encourages prospective customers to perform free “people searches”         
on its website by typing in a searched individual’s first and last         
name. The result of such a search is a preview page featuring the          
searched  individual’s  full  name  along  with  certain   uniquely        
identifying  information,  including  location,  work  history,  and       
education.  Compl.  at  ¶  2.  The  goal  of  this  “preview”  page  is    
allegedly  twofold:  first,  it  shows  the  potential  customer  that     
defendant’s  database  contains  information  about  the   specific        
searched-for individual; and second, it offers a paid subscription         
service that allows customers to access additional information not         
only about the individual featured in the preview, but also about          
every  individual  in  defendant’s  database.  Id.  In  other  words,      
defendant uses plaintiff’s and the class members’ identities not to        
sell  information  about  those  individuals,  but  rather  to  sell  a    
subscription  service.  And  because  defendant  does  so   without        
obtaining their prior written consent, it violates the IRPA.               

    Defendant moves to dismiss the complaint on four broad grounds:       
that the conduct plaintiff alleges falls within one or more of the         
IRPA’s  exemptions;  that  the  First  Amendment  protects  defendant’s    
publications and bars plaintiff’s claims; that defendant is immune         
from  liability  under  the  Communications  Decency  Act;  and  that      
plaintiff’s  claim  runs  afoul  of  the  “dormant”  Commerce  Clause.     
Because none of these arguments survives scrutiny, the motion is           
denied.                                                                    
                               I.                                         
    Plaintiff alleges that RocketReach violates the provision of          
the  IRPA  that  states,  “[a]  person  may  not  use  an  individual’s    

identity for commercial purposes during the individual’s lifetime          
without  having  obtained  previous  written  consent....”  765  ILCS      
1075/30(a). To state a claim under this provision, plaintiff must          
plead (1) the appropriation of her identity, (2) without her consent,      
(3) for defendant’s commercial benefit. Dancel v. Groupon, Inc., 

949 F.3d 999, 1008

  (7th  Cir.  2019).  Defendant  does  not  meaningfully   
contend that plaintiff fails to allege each of these elements. In a        
footnote,  defendant  suggests  that  plaintiff  has  not  adequately      
alleged “use” of her identity because she does not assert that anyone      
performed  a  search  of  defendant’s  database  using  her  name.  But    
plaintiff alleges plainly that “Defendant used Plaintiff’s and the         
putative class members’ identities on its Marketing Pages, which           
display the individuals found within its records that match searched-      

for names, alongside uniquely identifying information such as each         
person’s location, employer name, job title, and links to social           
media profiles. This information serves to identify such individuals       
to  a  reasonable  audience.”  Compl.  at  ¶  36.  Additionally,  the      
complaint illustrates the alleged use of her name with an image of         
what appears to be the result of a search for “Aimee Krause.” Id. at       
¶ 16. Nothing more is required at this stage.                              
                         IRPA Exemptions                                  
    The bulk of defendant’s argument is not directed to the elements      
of plaintiff’s claim but rather asserts that her claim fails because       
it is based on conduct that falls within one or more of the exemptions     

the statute contemplates. This argument, however, is in the nature         
of an affirmative defense, and it does not support dismissal unless        
the  complaint  itself  facially  establishes  each  element  of  the      
defense. See Dobrowolski v. Intelius, Inc., No. 17 CV 1406, 

2017 WL 3720170

, at *9 (N.D. Ill. Aug. 29, 2017) (Hyson USA, Inc. v. Hyson         
2U, Ltd., 

821 F.3d 935, 939

 (7th Cir. 2016) (“a plaintiff ordinarily       
need  not  anticipate  and  attempt  to  plead  around  affirmative        
defenses.”). That is not the case here, and in fact, defendant’s           
effort to squeeze plaintiff’s allegations into the framework of its        
affirmative defenses misconstrues the nature of her claim.                 
    Defendant asserts three of the IRPA’s exemptions as grounds for       
dismissal. The first provides that the statute does not apply to           
“use of an individual’s identity in an attempt to portray, describe,       

or impersonate that individual in a live performance, a single and         
original work of fine art, play, book, article, musical work, film,        
radio, television, or other audio, visual, or audio-visual work,           
provided that the performance, work, play, book, article, or film          
does not constitute in and of itself a commercial advertisement for        
a product, merchandise, goods, or services.” 765 ILCS 1075/35(b)(1).       
Defendant argues that its website provides “factual, biographical          
information similar to a paper directory,” and that “each profile in       
the database is an “article”; or the website itself is analogous to        
a “book,” or the website as a whole constitutes an “other visual           
work.”  Mem.  at  7.  Like  the  defendants’  argument  in  Lukis  v.      

Whitepages Inc., this argument “misses the point.” 

454 F. Supp. 3d 746

, 762 (N.D. Ill. 2020). Plaintiff does not challenge her inclusion      
in defendant’s database; what she objects to is the display of her         
name and personally identifying information in a “preview” intended        
to solicit subscriptions to defendant’s paid service. As the Lukis         
court explained, “[e]ven indulging the generous assumption that the        
free previews qualify as a ‘performance, work, play, book, article,        
or film,’ they are alleged to be ‘a commercial advertisement for a         
product,  ...  goods,  or  services,’”  specifically,  the  defendant’s    
monthly subscription services, “and thus fall outside the scope of         
Section 35(b)(1) given the provision’s ‘provided that’ clause.” 

Id.

        
The same result obtains on the allegations here.                           
    The analysis under Section 35(b)(2) of the IRPA, which exempts        

non-commercial  uses  of  an  individual’s  identity,  including  “any     
news,  public  affairs,  or  sports  broadcast  or  account,  or  any      
political  campaign”—similarly  tracks  the  one  in  Lukis.  Defendant    
argues that because its website “provides information,” it is exempt       
from the IRPA, notwithstanding that its “business model” relies on         
monthly subscriptions. But plaintiff does not challenge defendant’s        
business model; what she objects to is the use of her identity in          
free “previews” that are allegedly used for the commercial purpose         
of promoting defendant’s subscription service. See Compl. at ¶¶ 18,        
37. These allegations do not establish an affirmative defense under        
Section 35(b)(2). See Lukis, 454 F. Supp. 3d at 762 (“free previews”       

alleged to promote subscription service not exempt under Section           
35(b)(2) at pleadings stage).                                              
    The last exemption defendant asserts precludes IRPA liability         
for uses of an individual’s identity based on “promotional materials,      
advertisements, or commercial announcements for a use described” in        
the foregoing exemptions. Accordingly, defendant’s argument based on       
this section falls with the previous two, as the pleadings do not          
establish  the  underlying  exempted  used.  Moreover,  defendant’s        
reliance on Dobrowolski for its exemption argument is misguided. Not       
only  did  the  Dobrowolski  court  expressly  decline  to  reach  the     
defendant’s  arguments  based  on  affirmative  defenses  as  noted        
previously,  but   the  proposition  for   which  defendant   cites        
Dobrowolski here—that plaintiff’s identity was “not used to promote        

a separate product” but is used because her identity is “part of the       
product offers for sale”—is at odds with the allegations of this           
case, which more closely resemble those in Lukis.1                         
                         First Amendment                                  
    Defendant’s arguments grounded in the First Amendment fare no         
better.  “Because  the  degree  of  protection  afforded  by  the  First   
Amendment depends on whether the activity sought to be regulated           
constitutes commercial or non-commercial speech,” Bolger v. Youngs         
Drug  Prod.  Corp.,  

463 U.S. 60, 65

  (1983),  defendant  begins  by    
insisting that its database is merely a “directory” that “does not         


1 Defendant acknowledges Lukis but argues that it does not “control”       
here. Mem. at 12. While it is true, of course, that another district       
court’s interpretation of the IRPA does not “control” my analysis,         
Judge Feinerman’s discussion of its application in that case—whose         
allegations are more closely aligned with those here than are the          
allegations in cases such as Vrdolyak v. Avvo, Inc., 

206 F. Supp. 3d 1384

 (N.D. Ill. 2016), and Thompson v. Getty Images (US), Inc., No.        
13 C 1063, 

2013 WL 3321612

 (N.D. Ill. July 1, 2013), which defendant       
cites—is persuasive.                                                       
propose  a  commercial  transaction”  and  is  entitled  to  full  First   
Amendment  protection.  As  noted  above,  however,  plaintiff’s  IRPA     
claim does not challenge her inclusion in defendant’s “directory,”         
but rather asserts that defendant’s use of her identity without her        
consent to entice customers to purchase its subscription service is        
prohibited  by  the  statute.  Her  allegations  not  only  describe  “a   
textbook example under the IRPA of using a person’s identity for a         
commercial purpose,” Lukis, 454 F. Supp. 3d at 760, they also satisfy      
the constitutional test for commercial speech.                             

    “To  determine  whether  speech  falls  on  the  commercial  or       
noncommercial side of the constitutional line, the Court has provided      
this basic definition: Commercial speech is ‘speech that proposes a        
commercial transaction.’” Jordan v. Jewel Food Stores, Inc., 

743 F.3d 509, 516

 (7th Cir. 2014) (quoting Bd. of Trustees of State Univ.      
of New York v. Fox, 

492 U.S. 469, 482

 (1989)). See also 

id. at 517

         
(additional considerations include “whether: (1) the speech is an          
advertisement; (2) the speech refers to a specific product; and (3)        
the speaker has an economic motivation for the speech.” (quoting           
United States v. Benson, 

561 F.3d 718, 725

 (7th Cir. 2009) (citing         
Bolger, 463 U.S. at 66–67))). The activity complaint articulates           

activity speech meeting all of these criteria.                             
    According  to  the  complaint,  the  “preview”  webpage  that  is     
displayed  when  a  user  searches  “Aimee  Krause”  features  summary     
information about plaintiff followed by the statement “Found phones:       
4  available  on  +Phone  plans.”  Compl.  at  ¶  16.  Clicking  on  this  
hyperlink opens a new page that invites the user to “Get direct dial       
phone numbers on lookups with +Phone Plans!” and displays a button         
labeled, “View Plans Now.” A user who clicks this button is offered        
three plans available for purchase on either a monthly or an annual        
basis at prices ranging from $69 per month for 1,920 lookups a year        
to $279 per month for 10,000 lookups a year. 

Id.

 A user can, it            
appears, proceed to the purchase of one of these subscriptions by          
clicking a further button labeled, “Select Plan.” 

Id.

 Taken together,      

these screens not only propose but also allow users to complete a          
commercial transaction.                                                    
    Defendant  nevertheless  suggests  that  because  the  database       
itself does not propose a commercial transaction, its entire website—      
including  the  pages  described  above—are  non-commercial  speech        
entitled to unfettered First Amendment protection. But defendant’s         
reliance  for  this  proposition  on  cases  such  as  Ariix,  LLC  v.     
Nutrisearch Corp., No. 17-cv-320, 

2018 U.S. Dist. LEXIS 48527

 (S.D.        
Cal. Mar. 23, 2018), and Exeltis USA Inc. v. First Databank, Inc.,         
No. 17-cv-4810, 2017 U.S. Dist. 210482 (N.D. Cal. Dec. 21, 2017),          
shows just how far afield of the present context defendant must reach      

for support. The plaintiff in Ariix asserted a Lanham Act claim based      
on the theory that the defendant’s failure to award plaintiff a “Gold      
Medal of Achievement” in an industry guide to nutritional supplements      
amounted to false representations about plaintiff’s product, while         
the  Exeltis  USA  plaintiff  sought  a  prior  restraint  on  allegedly   
misleading information about its product’s prescription status. Both       
of these cases involved publications in the highly regulated food          
and drug industry, and neither sheds any meaningful light on whether       
defendant’s use of plaintiff’s name and personal information next to       
a hyperlink offering to sell a variety of subscription services is         
commercial  speech   for  First  Amendment   Purposes.  And  while         
defendant’s citations to Vrdolyak v. Avvo, Inc., 

206 F. Supp. 3d 1384

, 1389 (N.D. Ill. 2016) (online attorney directory that includes       

“Sponsored Listings” not commercial speech), Nieman v. VersusLaw,          
Inc.,  

512 F. App’x 635, 637

  (7th  Cir.  2013)  (judicial  records    
published  in  commercial  databases  not  commercial  speech),  and       
Carafano v. Metrosplash, Inc., 

207 F. Supp. 2d 1055

 (C.D. Cal. 2002)       
(profiles  published  by  third-party  users  of  dating  website  not     
commercial speech), are closer to the mark, none of these cases            
involves describes the type of transaction proposed by defendant’s         
website, and none supports dismissal on the allegations here.2             
                   Communications Decency Act                             
    Nor am I persuaded that plaintiff’s claim is barred by the            
Communications Decency Act, which provides that “[n]o provider or          

user of an interactive computer service shall be treated as the            

2 Because defendant places all of its eggs in the basket of its            
argument that plaintiff’s claim targets only non-commercial speech,        
I need not reach plaintiff’s argument that her claim is consistent         
with the lesser protections the First Amendment affords commercial         
speech.                                                                    
publisher  or  speaker  of  any  information  provided  by  another        
information content provider.” 

47 U.S.C. § 230

(c)(1). “As the Seventh      
Circuit has explained, the CDA applies to online forums serving as         
‘a mere passive conduit for disseminating [actionable] statements.’”       
Lukis 454 F. Supp. 3d at 763 (quoting Huon v. Denton, 

841 F.3d 733, 742

 (7th Cir. 2016)). The complaint’s description of defendant’s           
website is inconsistent with the inference that it functions as a          
“passive conduit.” Plaintiff’s theory is that defendant selects a          
portion of the information its database contains about a searched-         

for individual and displays it as bait to entice users to purchase         
subscriptions  granting  them  access  to  additional  information  not    
only about that individual but about anyone in the database. In Huon,      
the Seventh Circuit acknowledged that an online platform cannot be         
held liable as the passive publisher of content provided by “another       
information  content  provider”  but  reversed  the  district  court’s     
conclusion at the pleadings stage that the Communication Decency Act       
barred  the  plaintiff’s  claim  for  defamation  where  the  defendant    
allegedly “edited,” “shaped,” and “choreographed” content provided         
by others. While it may be, as defendant contends (again in the            
context of an affirmative defense on which defendant bears the burden      

of proof) that the information in defendant’s database is exclusively      
provided by “another information content provider,” the complaint          
alleges that defendant curated that information for commercial gain        
and used plaintiff’s and the class members’ identities to do so.           
These  allegations,  on  their  face,  do  not  establish  that  the       
Communications Decency Act shields defendants from liability under         
the IRPA. See Lukis 454 F. Supp. 3d at 763 (declining to dismiss           
IRPA claim against defendant “alleged to have actively compiled and        
collated,  from   several  sources,   information  regarding”  the         
plaintiff).                                                                
                    “Dormant” Commerce Clause                             
    Defendant’s final argument is that plaintiff’s claim runs afoul       
of  the  “dormant”  Commerce  Clause,  which  “precludes  states  and      

municipalities from erecting obstacles to interstate commerce even         
where Congress has not regulated.” Regan v. City of Hammond, Indiana,      

934 F.3d 700, 702

 (7th Cir. 2019). Defendant argues that applying          
the  IRPA  to  bar  its  use  of  plaintiff’s  and  the  class  members’   
identities “burdens RocketReach’s ability to engage in interstate          
commerce in a way that is wholly out of proportion to the de minimis       
state interest in suppressing those results.” Mem. at 22. But this         
plainly is not an argument that can be resolved on the pleadings.          
    As the Seventh Circuit has observed, “[t]he fact that a state         
or municipal law affects interstate commerce in some way is by itself      
insufficient to render the law suspect under the commerce clause, as       

almost  any  local  regulation  is  bound  to  touch  upon  interstate     
commerce.” Regan 

934 F.3d at 702

 (7th Cir. 2019). See also Experience      
Hendrix L.L.C. v. Hendrixlicensing.com Ltd, 

762 F.3d 829, 837

 (9th         
Cir.  2014)  (reversing  district  court’s  conclusion  that  applying     
Washington’s  Personality  Rights  Act  to  Jimi  Hendrix’s  “limited,  non- 
speculative”  post-mortem  right  to  publicity  claim  gave  the  statute 
an   “impermissible   extraterritorial   reach”   in   violation   of   the 
dormant  Commerce  Clause).   In  other  words,   the  analysis  necessarily 
involves  a  balancing  test.  The  complaint  simply  does  not  plead  the 
kinds  of  facts  necessary  to  determine  whether  the  interests  served 
by  application  of  the  IRPA  to  the  claim  here  outweigh  the  burden,  if 
any,  on  interstate  commerce. 
                                      Il. 
     For  the  foregoing  reasons,  the  motion  to  dismiss  is  denied. 

                                         ENTER  ORDER: 

                                            Elaine  E.  Bucklo 
                                     United  States  District  Judge 
Dated:  September  21,  2021 

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