Fiordirosa v. Publishers Clearing House, Inc.
2:21-cv-06682
E.D.N.YAug 31, 2022Background
- Plaintiffs filed a Consolidated Amended Class Action Complaint against Publishers Clearing House (PCH) alleging that PCH sold/rented customer mailing lists (names, addresses, other personal info) without consent, violating five states’ right-of-publicity statutes (Illinois, California, South Dakota, Ohio, Puerto Rico).
- PCH moved to dismiss for failure to state claims, arguing plaintiffs’ identities were the product sold and thus not used for a separate commercial purpose; PCH also argued the California plaintiff (Green) failed to plead a cognizable injury under Cal. Civ. Code §3344.
- PCH moved to stay discovery pending resolution of its motion to dismiss; plaintiffs do not oppose the stay.
- The court applied the standard for a stay pending a dispositive motion, weighing (1) strength of the dispositive motion, (2) breadth and burden of discovery, and (3) risk of unfair prejudice to plaintiffs.
- The court concluded PCH made a strong showing that the claims may be unmeritorious (identity as the product; insufficient injury pled for CRPL), discovery would be burdensome across five statutes and jurisdictions, and plaintiffs would not suffer unfair prejudice from a temporary stay.
- The court granted the stay of discovery pending resolution of PCH’s motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs stated right-of-publicity claims under the five statutes | Plaintiffs allege nonconsensual sale/rental of identities on mailing lists violates statutes | PCH: plaintiffs’ identities were the product sold; no use of identity to market a separate product, so no commercial appropriation | Court: PCH made a strong showing that claims may be unmeritorious because plaintiffs allege the identity itself was the product |
| Whether Green (California) pleaded the injury element under the CRPL | Green contends injury is presumed once appropriation, lack of consent, and defendant’s advantage are alleged; also alleges commercial value and PCH profits | PCH: Green failed to plead cognizable resulting injury (non-celebrity must plead mental anguish or other plausible harm) | Court: PCH made a strong showing Green’s CRPL claim is likely unmeritorious for lack of adequately pleaded injury |
| Whether discovery should be stayed pending the motion to dismiss | Plaintiffs join request to stay to avoid unnecessary burden and expense | PCH: discovery would be broad and costly across five statutes and jurisdictions; stay avoids wasted effort if dismissal granted | Court: Granted stay — dispositive motion may narrow or eliminate claims, discovery burden is substantial, and plaintiffs would not suffer unfair prejudice |
Key Cases Cited
- Landis v. North American Co., 299 U.S. 248 (1936) (trial courts have inherent power to stay proceedings to manage docket and conserve resources)
- Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 236 F.R.D. 113 (E.D.N.Y. 2006) (stay factors: strength of motion, breadth/burden of discovery, prejudice to opposing party)
- Bosley v. Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio 2004) (examples of publicity claims where identity used to advertise separate products)
- Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090 (N.D. Cal. 2011) (non-celebrity plaintiffs must plead cognizable injury, often mental anguish, to state misappropriation claim)
- Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011) (elements required to state a claim under California’s right-of-publicity statute)