454 F.Supp.3d 746
N.D. Ill.2020Background
- Plaintiffs Stephanie Lukis (against Whitepages) and Robert Fischer with Lukis (against Instant Checkmate) sued in Illinois state court alleging violations of the Illinois Right of Publicity Act (IRPA) for using their names and identifying details in free "preview" profiles that advertise paid monthly subscription background‑report services.
- Defendants are nationwide background‑report websites that compile public and private records into reports, display limited free previews that include age, city, relatives, phone numbers and prior addresses, and use clicks on previews to steer users to a paywall/subscription.
- Plaintiffs allege they never consented, are not customers, suffered emotional distress, and seek class treatment; defendants removed under CAFA and moved to dismiss (Whitepages: Rule 12(b)(2) and 12(b)(6); Instant Checkmate: Rule 12(b)(6)).
- The court accepted Plaintiffs’ well‑pleaded facts for purposes of the motions, found that Whitepages had sufficient purposeful contacts with Illinois to permit specific personal jurisdiction, and concluded Plaintiffs stated plausible IRPA claims.
- The court rejected, at the pleading stage, defendants’ arguments that the Communications Decency Act, the IRPA’s exclusions (Sections 35(b)(1),(b)(2),(b)(4)), or the First Amendment categorically bar the claims; motions to dismiss were denied and answers were ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction (Whitepages) | Whitepages purposely targeted Illinois by compiling Illinois public records, identifying Illinois residents in previews, and selling subscriptions to Illinois consumers | Whitepages has no Illinois contacts beyond an interactive website accessible everywhere; that would not permit suit in every forum (citing Advanced Tactical) | Court: Specific jurisdiction exists; Whitepages purposefully directed tortious activity at Illinois and plaintiffs’ injuries arise from those contacts; fair play and substantial justice satisfied |
| IRPA — "commercial purpose" | Previews use identities to advertise and promote subscription services (commercial use under 765 ILCS 1075/5 and §30(a)) | Previews merely show the product (a background report about the same person) and thus are not a separate commercial use (relying on Dobrowolski/Intelius line) | Court: Previews here advertise a subscription service (not only a report about the person), so plaintiffs plausibly alleged a commercial purpose |
| IRPA — "identity" element | Aggregation of name plus middle initial, age/range, addresses, phone numbers, relatives, etc., identifies plaintiffs to an ordinary viewer | Use of common names alone is insufficient because search results list multiple people with same name | Court: The additional attributes in previews plausibly identify the particular plaintiffs and satisfy IRPA’s definition of identity |
| IRPA exclusions (Sections 35(b)(1),(b)(2),(b)(4)) | n/a (Plaintiffs contend previews are commercial advertising) | Defendants: reports are like books/encyclopedias or public‑affairs matter, so previews are excluded or are promotional materials of excluded works | Court: At pleading stage exclusions not shown to apply; previews are alleged advertisements for subscriptions and cannot be resolved as legal shield now |
| CDA and First Amendment defenses | n/a | Whitepages: CDA §230 immunizes publisher; First Amendment protects publication/advertising of directory material | Court: CDA inapplicable on pleadings because defendant allegedly actively compiled/edited content; First Amendment protection of the underlying reports cannot be resolved without more factual record |
Key Cases Cited
- Felland v. Clifton, 682 F.3d 665 (7th Cir. 2012) (plaintiff need only make prima facie showing of personal jurisdiction on written materials)
- Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796 (7th Cir. 2014) (mere interactive website access and isolated sales do not alone establish purposeful direction)
- Walden v. Fiore, 571 U.S. 277 (U.S. 2014) (specific jurisdiction requires defendant’s intentional contacts with the forum itself)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (U.S. 1985) (purposeful availment and fairness factors for specific jurisdiction)
- Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010) (tortious conduct aimed at Illinois supports jurisdiction when injury is suffered there)
- Huon v. Denton, 841 F.3d 733 (7th Cir. 2016) (CDA §230 inapplicable where website operator materially contributes to or shapes content)