574 F.Supp.3d 582
N.D. Ill.2021Background
- Ancestry operates a large Yearbook Database and markets paid subscription services (including a 14‑day free trial) by showing limited yearbook records and promotional “hints” to potential customers via emails and on‑site previews.
- Plaintiff Bonilla, an Illinois resident and non‑subscriber, alleges Ancestry used his name, photo, image, and likeness (from a 1995 yearbook) in promotional materials to advertise subscriptions without his consent.
- Bonilla asserts four claims: violation of the Illinois Right of Publicity Act (IRPA), violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), intrusion upon seclusion, and unjust enrichment.
- Ancestry moved to dismiss under Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction) and 12(b)(6) (failure to state a claim), and argued CDA Section 230 immunity and Copyright Act preemption as additional defenses.
- The court found a prima facie basis for specific jurisdiction over Ancestry in Illinois, held Bonilla has standing to pursue the IRPA claim, rejected dismissal on CDA and copyright preemption grounds at the pleading stage, and concluded IRPA and unjust enrichment survive while ICFA and intrusion claims fail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction | Ancestry purposefully directed advertising and use of Bonilla’s likeness at Illinois residents | Contacts are insufficient; plaintiff residency alone cannot confer jurisdiction | Court: specific jurisdiction satisfied on plaintiff's prima facie allegations of Illinois‑directed use and advertising |
| Standing (concrete injury) | Use of name/likeness for commercial advertising under IRPA is a common‑law harm giving concrete injury | Plaintiff alleges only statutory injury insufficient for Article III | Court: Bonilla has standing for IRPA; statutory right of publicity claims relate to traditional harms under TransUnion/Spokeo framework |
| CDA Section 230 immunity | Not raised by plaintiff | Ancestry: as an online service, it is a passive conduit and entitled to §230 immunity | Court: allegations that Ancestry curated, created records, and used them in advertising do not unambiguously establish §230 immunity at pleading stage; denial of dismissal on that ground |
| Copyright preemption & IRPA exemptions | Bonilla: IRPA protects identity separate from any copyrighted yearbook image | Ancestry: claims arise from copyrighted yearbook images or fall within statutory exemptions (news/creative works) | Court: Copyright preemption and statutory exemptions not evident on face of complaint; IRPA claim not dismissed; exemptions inapplicable at pleading stage |
| ICFA (particularity & consumer nexus) | Ancestry’s promotion creates consumer protection concerns supporting ICFA | ICFA requires fraud particularity and a consumer nexus (Bonilla is a non‑consumer) | Court: ICFA dismissed for failure to plead fraud with particularity and failure to allege required consumer nexus |
| Intrusion upon seclusion | Bonilla: publication/ misuse of personal information was an unauthorized, offensive intrusion causing distress | Ancestry: yearbook information was not private, collection was not an actionable intrusion, and injury ties to publication not intrusion | Court: intrusion claim dismissed—no pleaded unauthorized intrusive conduct, no highly offensive intrusion, and no adequate allegation of anguish caused by intrusion |
| Unjust enrichment | Bonilla: Ancestry profited by exploiting his identity; unjust enrichment tied to IRPA claim | Ancestry: no benefit at plaintiff’s expense | Court: unjust enrichment survives because it rises and falls with viable IRPA claim |
Key Cases Cited
- Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) (discusses limits of general jurisdiction and forum affiliation)
- Walden v. Fiore, 571 U.S. 277 (2014) (plaintiff cannot be sole link for specific jurisdiction; defendant’s forum‑directed conduct required)
- Curry v. Revolution Labs., LLC, 949 F.3d 385 (7th Cir. 2020) (three‑part specific jurisdiction analysis)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (statutory injuries require concrete harm closely related to traditional harms for standing)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (Article III standing requires injury that is concrete and particularized)
- Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005) (right of publicity protects identity distinct from copyright; commercial use element)
- Huon v. Denton, 841 F.3d 733 (7th Cir. 2016) (§230 immunity applies where defendant is a passive conduit)
- Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935 (7th Cir. 2016) (affirmative defenses like §230 often depend on factual record and rarely warrant dismissal at pleading stage)
- Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Svcs., Inc., 536 F.3d 663 (7th Cir. 2008) (ICFA and fraud‑based claims must plead particularity under Rule 9(b))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (court need not accept legal conclusions as true)