Bohnak v. Trusted Media Brands Inc.

OPINION & ORDER Eleven named plaintiffs¹ (collectively, “Plaintiffs”) bring this putative class action against Trusted Media Brands, Inc. (“Defendant” or “TMBI”), alleging sale, rental, or disclosure of TMBI subscribers’ personal information, without the subscribers’ knowledge or consent, to third parties for profit, in violation of Alabama, Indiana, California, Nevada, Ohio, South Dakota, Washington, and Puerto Rico statutes. Presently before this Court is TMBI’s motion to dismiss Plaintiffs’ First Amended Complaint (“AC”) pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF No. 17.) For the following reasons, TMBI’s motion is GRANTED. BACKGROUND The following facts are drawn from the AC and are accepted as true for the purpose of this motion. TMBI is a Delaware corporation and publishes magazines such as Reader’s Digest, The Family Handyman, Country, Country Woman, and Taste of Home. TMBI conducts business throughout Alabama, Indiana, California, Nevada, Ohio, South Dakota, Washington, and Puerto Rico, among other U.S. states. Plaintiffs are eleven residents respectively of these states who subscribe to at least one of TMBI’s magazines. TMBI maintains a vast digital database comprised of its subscribers’ names, basic demographic information, and subscription preferences. TMBI sells such information — which Plaintiffs define as TMBI’s “Data Brokerage Products” — to various third parties, including “data miners, data aggregators, data appenders, data cooperatives, list rental recipients, list exchange recipients, and list brokers.” (Compl. 2.) Plaintiffs define each class as the residents of each respective state who appear in any of TMBI’s Data Brokerage Products. The AC sets forth eight causes of action, respectively under the Right of Publicity statutes of the eight states: the Alabama Right of Publicity Act, Ala. Code §6-5-772(a) (“Alabama Statute”)²; Indiana Code (IC) 32-36-1-1, et seq. (the “Indiana Statute”)³; California Civil Code §3344 (the “California Statute”)⁴; Nevada Revised Statutes Annotated (Nev. Rev. Stat. Ann.) §597.770, et seq. (the “Nevada Statute”)^{5 ;} Ohio Revised Code §2741.01, et seq. (the “Ohio Statute”)⁶; South Dakota Codified Laws §21-64-1, et seq. (the “South Dakota Statute”)⁷; Revised Code of Washington (RCW) 63.60.010, et seq. (the “Washington Statute”)⁸; and 32 Laws of Puerto Rico (L.P.R.) §3151, et seq. (the “Puerto Rico Statute”)⁹ (collectively, “State Statutes”). Under each State Statute, Plaintiffs seek injunctive relief, statutory damages, and punitive damages where available. TMBI moved to dismiss the AC. LEGAL STANDARD In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff’s favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Rather, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555. In meeting this plausibility standard, the plaintiff must demonstrate more than a “sheer possibility” of unlawful action; pleading facts that are “‘merely consistent with’ a defendant’s liability…’stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955); see also Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 131 (2d Cir. 2007) (“Although the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice. To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” (Internal quotes and cites omitted)); Gavish v. Revlon, Inc., 2004 WL 2210269, at *10 (S.D.N.Y. Sept. 30, 2004) (“[B]ald contentions, unsupported characterizations, and legal conclusions are not well-pleaded allegations and will not defeat a motion to dismiss.”). DISCUSSION The instant action is one among many substantially similar actions filed in this district and across the country. Here, as elsewhere¹⁰, Plaintiffs’ argument centers on the statutory phrase “use [a person's name or identity] on or in” products, found in each of the State Statutes.¹¹ Plaintiffs aver that, by selling subscribers’ personal information to third parties, TMBI used the subscribers’ name “on or in” the “Data Brokerage Products” within the meaning of the State Statutes. Consistent with our colleagues’ rulings, this Court disagrees. First, as the In re Hearst Commc’ns State Right of Publicity Statute Cases Court adeptly explains, the State Statutes address the right of publicity. No. 21 Civ. 8895 (RA), 2022 WL 17770152, at *4 (S.D.N.Y. Dec. 19, 2022). A “widely recognized intellectual property right,” the right of publicity protects the “property interest” an individual has in their name or likeness when 10 See, e.g., In re Hearst Commc’ns State Right of Publicity Statute Cases, No. 21 Civ. 8895 (RA), 2022 WL 17770152, at *4 (S.D.N.Y. Dec. 19, 2022); Dodd v. Advance Mag. Publishers Inc., No. 21 Civ. 8899 (RA), 2022 WL 17764815, at *1 (S.D.N.Y. Dec. 19, 2022); Farris v. Orvis Co., Inc., No. 2:22 Civ. 00007, 2022 WL 10477051, at *1 (D. Vt. Oct. 18, 2022), appeal withdrawn, No. 22-3075, 2023 WL 2355752 (2d Cir. Jan. 10, 2023). such an individual’s identity “carries value through…labor and effort.” Id. (citing Hart v. Elec. Arts, Inc., 717 F.3d 141, 150 (3d Cir. 2013) and Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1322 (11th Cir. 2006)) (emphasis in original) (internal quotation marks omitted). A progeny of the common law right to privacy torts, the right of publicity, upon codification, was not contemplated to encompass any unconsented sale or rental of personal information in the data industry.¹² Second, in this district and beyond, multiple courts have recently considered the same statutory argument over the same activity — the unauthorized sale of subscriber information — and rejected the same argument as made by Plaintiffs. For example, the Seventh Circuit, in affirming Huston v. Hearst Commc’ns, Inc.,¹³ held that to meet “the commercial use” prong of Illinois’ right of publicity statute, the plaintiffs’ identity must be used to promote the sale of another product; the sale of the plaintiffs’ identity as part of a mail list is thus insufficient. No. 21 Civ. 1196, 2022 WL 385176 (C.D. Ill. Feb. 7, 2022), aff’d, 53 F.4th 1097 (7th Cir. 2022) (“The purchase of mailing lists of subscribers has been a standard practice in the direct mail industry…this is not a commercial purpose as defined by the statute.”) The Huston ruling is consistent with the more recent Farris v. Orvis Co., Inc., where the Court concludes that the right of publicity statutes of California, Ohio, and Illinois give no causes of action “where the plaintiff’s identity is the product being sold.” No. 22 Civ. 00007, 2022 WL 10477051, at *1 (D. Vt. Oct. 18, 2022), appeal withdrawn, No. 22-3075, 2023 WL 2355752 (2d Cir. Jan. 10, 2023); see also In re Hearst Commc’ns State Right of Publicity Statute Cases, 2022 WL 17770152, at *5. Even closer to home is Wallen v. Consumer Reports, where our learned colleague dismissed a substantially similar claim under Alabama, California, Hawaii, Indiana, Nevada, Ohio, and Washington right of publicity statutes on the ground that each of these statutes “requires a public commercial use of a person’s name or identity for liability,” where the plaintiffs there, as here, could not plausibly allege to have happened with subscriber list sales. No. 21 Civ. 8624 (VB), 2022 WL 17555723, at *4 (S.D.N.Y. Dec. 9, 2022). In the case at bar, the gist of Plaintiffs’ argument is that the language of the State Statutes can be interpreted to cover TMBI’s unauthorized sale of its subscribers’ information and thus protect the subscribers’ privacy right. Such invocation of the publicity right statutes for alleged protection of privacy is akin to pointing to the eye of a sizable grey animal and declaring that because the eye appears to be that of a whale, the animal must be a whale — even though all precedents make unequivocally clear that the animal is an elephant. As the Hearst Court points out, Plaintiffs’ argument is novel. 2022 WL 17770152, at *8. Yet, “our role as a federal court sitting in diversity is not to adopt innovative theories that may distort established state law.” See Runner v. New York Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009) (citing and quoting The Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 329 (2d Cir.2005)). Accordingly, the Court grants TMBI’s motion to dismiss the AC. CONCLUSION For the foregoing reasons, Defendant TMBI’s motion to dismiss the First Amended Complaint is GRANTED. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 24 and terminate the action. SO ORDERED: Dated: March 29, 2023