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Wallen v. Consumer Reports Inc.

Disclosure of Subscriber Lists Not a Prohibited Use Under Misappropriation Statutes

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OPINION AND ORDER Plaintiffs James Wallen, Royce Lader, Rita Fahrner, LeeAnn Biddix, Frank Highsmith, Jerry Hill, Helen Kassamanian, and Ernest Branigh bring this putative class action against defendant Consumer Reports, Inc., arising out of defendant’s practice of renting or exchanging data about its subscribers to third parties for profit, including subscribers’ names, titles of publications subscribed to, and home addresses. Plaintiffs claim this practice misappropriates subscribers’ names, identities, or likenesses in violation of the right of publicity statutes of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington (together, the “Misappropriation Statutes”). Now pending is defendant’s motion to dismiss the first amended complaint (“Amended Complaint” or “Am. Compl.”) under Rule 12(b)(6). (Doc. #28). For the reasons set forth below, the motion is GRANTED. The Court has subject-matter jurisdiction pursuant to 28 U.S.C. §1332(d). BACKGROUND For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded allegations in the Amended Complaint and draws all reasonable inferences in plaintiffs’ favor, as summarized below. Plaintiffs are residents of Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington and subscribers to defendant’s Consumer Reports magazines. They allege defendant provides information about subscribers, including their names, titles of publications subscribed to, and home addresses, to other companies that aggregate this information with data about the subscribers from other sources, such as sex, age, race, and political party. The aggregated data is then returned to defendant (the “Subscriber Lists”), which defendant sells, licenses, exchanges, or rents to third parties for a “significant” profit. (Am. Compl.

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