STEPHANIE LUKIS, individually and on behalf of all others similarly situated, Plaintiff, vs. WHITEPAGES INCORPORATED, Defendant. ROBERT FISCHER and STEPHANIE LUKIS, individually and on behalf of all others similarly situated, Plaintiffs, vs. INSTANT CHECKMATE LLC, Defendant.
19 C 4871; 19 C 4892
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
April 16, 2020
MEMORANDUM OPINION AND ORDER
Stephanie Lukis brought a putative class action against Whitepages Inc., and Lukis and Robert Fischer brought a putative class action against Instant Checkmate LLC, in the Circuit Court of Cook County, Illinois, both alleging violations of the Illinois Right of Publicity Act (
Background
In resolving Whitepages‘s Rule 12(b)(2) motion, the court considers the complaint‘s well-pleaded allegations and the evidentiary materials submitted by both sides. No party requests an evidentiary hearing, so the court accepts Lukis‘s factual allegations and resolves all factual disputes in her favor. See Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012) (“[W]here, as here, the issue [of personal
In resolving Whitepages‘s and Instant Checkmate‘s Rule 12(b)(6) motions, the court assumes the truth of the complaints’ well-pleaded factual allegations, though not their legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint[s], documents that are critical to the complaint[s] and referred to in [them], and information that is subject to proper judicial notice,” along with additional facts set forth in Plaintiffs’ briefs opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013). The facts are set forth as favorably to Plaintiffs as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).
No. 19 C 4871
Lukis resides in Cook County, Illinois. Doc. 1-1 at ¶ 1 (all docket citations in this section of the Background are to 19 C 4871). Whitepages, a Washington-headquartered сorporation organized under Washington law, owns and operates a website (www.whitepages.com) that sells “background reports” on people. Id. at ¶¶ 2, 6-7. Whitepages compiles and generates the reports, and in so doing “ingest[s]” into its internal database over two billion records per month. Id. at ¶ 17 (internal quotation marks omitted). Whitepages knowingly searches for and obtains private and public records and identifying information regarding Illinois residents, and directly sells its reports to Illinois consumers. Id. at ¶¶ 20-21.
Anybody interested in obtaining background reports from Whitepages can enter a first and last name in the search bar on its homepage. Id. at ¶ 8. Doing so yields a list of actual persons identified by Whitepages as having that name. Id. at ¶ 9. For each person listed, Whitepages provides a limited, free preview of a background report containing enough information—the person‘s middle initial, age range, phone number, current address, previous residential addresses, and other information—to identify the person. Id. at ¶¶ 10-11. Here are screen captures showing Whitepages‘s free previews of background reports on Lukis:
These previews reflect that Whitepages obtained information about Lukis from public records, including court and law enforcement databases (“criminal history,” “[c]riminal records,” “[b]ankruptcies and foreclosures“), local government property databases (“[p]roperty ownership info“), and state and/or local regulatory agency databases (“[p]rofessional licenses and permits“), ibid.—thus confirming Lukis‘s allegation, noted above, that Whitepages knowingly searches for and obtains public records concerning Illinois residents in generating its background reports, id. at ¶ 20.
Whitepages‘s sole purpose in offering free previews is to advertise products available on its website. Id. at ¶ 12. Those products include monthly subscriptions enabling the subscriber to view background
In 2018, Lukis discovered that Whitepages uses her name, age range, city of domicile, and relatives’ names in advertisements on its website that are the same or substantially similar to those free previews. Id. at ¶ 22. The previews provide accurate information that would enable a viеwer to identify her as the Stephanie Lukis described therein. Id. at ¶¶ 23-24. Lukis did not provide Whitepages with
No. 19 C 4892
Like Lukis, Fischer resides in Cook County. Doc. 1-1 at ¶¶ 1-2 (all docket citations in this section of the Background are to 19 C 4892). Instant Checkmate owns and operates a website (www.instantcheckmate.com) that sells “background reports” on people. Id. at ¶¶ 3, 6-7. Instant Checkmate compiles and generates the reports, and in so doing “continually searches for new data and adds it to [its] reports the minute it becomes available.” Id. at ¶ 17 (internal quotation marks omitted) (alteration in the original). Instant Checkmate knowingly searches for and obtains private and public records and identifying information regarding Illinois residents, and directly sells its reports to Illinois consumers. Id. at ¶¶ 20-21.
Anybody interested in obtaining background reports from Instant Checkmate can enter a first and last name in the search bar on its homepage. Id. at ¶ 8. Dоing so yields a list of actual persons identified by Instant Checkmate as having that name. Id. at ¶ 9. For each person listed, Instant Checkmate provides a limited, free preview of a background report containing enough information—the person‘s middle initial, age, current city and state of residence, previous cities the individual lived in, and other information—to identify the person. Id. at ¶¶ 10-11. Here are screen captures showing free previews of background reports on Lukis and Fischer:
Instant Checkmate‘s sole purpose in offering free previews is to advertise products available on its website. Id. at ¶ 12. Those products include monthly subscriptions enabling the subscriber to view background reports of persons in Instant Checkmate‘s database. Id. at ¶¶ 12-16. In the free previews reproduced above, clicking on “view report” or “open report” leads to a pay screen offering the monthly subscription package. Id. at ¶ 14.
Fischer and Lukis discovered that Instant Checkmate uses their names, ages, current cities of domicile, and relatives’ names in advertisements on its website that are the same or substantially similar to those free previews. Id. at ¶¶ 22, 30.
Discussion
The complaints allege that Whitepages and Instant Checkmate violated the IRPA by using Plaintiffs’ names and other identifying information in free previews to advertise their monthly subscription services. Doc. 1-1 at ¶¶ 38-44 (19 C 4871); Doc. 1-1 at ¶¶ 46-52 (19 C 4892). From this point forward, all record citations are to 19 C 4871 (Lukis‘s case against Whitepages) unless indicated otherwise.
I. Whether Whitepages Is Subject to Personal Jurisdiction
Whitepages argues that it is not subject to personal jurisdiction. Doc. 17 at 10-13. “The plaintiff bears the burden of establishing personal jurisdiction.” Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014). “Where, as here, the district court rules on a defendant‘s motion to dismiss based on the submission of written materials without holding an evidentiary hearing, the plaintiff need only make out a prima facie case of persоnal jurisdiction.” N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014) (internal quotation marks omitted).
“District courts exercising diversity jurisdiction apply the personal jurisdiction rules of the state in which they are located.” Philos Techs., Inc. v. Philos & D, Inc., 802 F.3d 905, 912 (7th Cir. 2015). “The Illinois long-arm statute permits the court to exercise jurisdiction to the full extent permitted by the Due Process Clause of the Fourteenth Amendment.” Brook v. McCormley, 873 F.3d 549, 552 (7th Cir. 2017) (citing
“Under the Fourteenth Amendment‘s Due Process Clause, a court may exercise personal jurisdiction over an out-of-state defendant when that defendant has ‘minimum contacts with the [forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.‘” Philos, 802 F.3d at 912-13 (quoting Int‘l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (alteration in original) (internal quotation marks omitted). “The defendant‘s conduct and connection with the forum state must be substantial enough to make it reasonable for the defendant to anticipate that he could be haled into court there. This purposeful-availment requirement ensures that a defendant‘s amenability to jurisdiction is not based on ‘random, fortuitous, or attenuated contacts,’ but on contacts that demonstrate a real relationship with the state with respect to the transаction at issue.” N. Grain, 743 F.3d at 492-93 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)) (internal quotation marks omitted) (internal citation omitted). “While there are two branches of personal jurisdiction theory—general and specific,” Philos, 802 F.3d at 913, Lukis focuses solely on specific jurisdiction.
“Specific personal jurisdiction is appropriate where (1) the defendant has purposefully directed his activities at the forum state or purposefully availed
Applying these principles to the present record yields the conclusion that Whitepages is subject to personal jurisdiction: Whitepages purposefully directed its activities towards Illinois; Lukis‘s alleged injuries arise from its forum-related activities; and exercising personal jurisdiction over it would not offend traditional notions of fair play and substantial justice.
Purposeful Direction. The complaint alleges that Whitepages knowingly searches for and obtains private and public records regarding Illinois residents, Doc. 1-1 at ¶ 20 & pp. 8-9, identifies Illinois residents in its search results and profiles them in free previews, id. at ¶¶ 9-10, and sells monthly subscriptions for background reports that it prepares from those records, id. at ¶¶ 20-21. The complaint further alleges that Whitepages compiles family, age, and address information about Illinois residents, without their consent, in free previews used to advertise its subscription services. Id. at ¶¶ 12-16. These actions qualify as the kind of “intentional contacts ... with [Illinois]” required for the exercise of specific jurisdiction. Noboa, 812 F.3d at 572; see Tamburo v. Dworkin, 601 F.3d 693, 706 (7th Cir. 2010) (finding personal
Pressing the opposite result, Whitepages observes that it “is not alleged to—and in fact does not—sell access to publicly available information about only Illinois residents or to only Illinois residents.” Doc. 17 at 12 (emphasis added). According to Whitepages, finding purposeful direction here would “subject every Web site operator to suit in any state from which its Web site is accessible,” contrary to the Seventh Circuit‘s decision in Advanced Tactical. Id. at 10.
In Advanced Tactical, the defendant firm—which was alleged to have placed infringing content on its interactive websitе—had no ties to Indiana beyond “fulfill[ing] a few orders” in Indiana, “sen[ding] at least two misleading email blasts to a list that included Indiana residents,” and making its website “available to residents of Indiana.” Id. at 801. In concluding that those ties did not qualify as purposeful direction of conduct towards Indiana, the Seventh Circuit reasoned that there was no evidence that any Indiana customer purchased the defendant‘s product after viewing the infringing content on its website, and that merely maintaining an interactive website available to residents of a particular State does not subject the defendant to personal jurisdiction in that State. Ibid. (“The only sales that would be relevant are those that were related to [the defendant‘s] allegedly unlawful activity. [The plaintiff]—which has the burden of proof here—has not provided evidence of any such sales.“). Holding otherwise, the Seventh Circuit explained, “would mean that a plaintiff could bring suit in literally any state where the defendant shipped at least one item,” resulting in a ”de facto universal jurisdiction” incompatible with settled precedent. Id. at 801-02. There is no such danger with finding purposeful direction here, as Whitepages is alleged to have engaged in repeated, intentional conduct directed at Illinois and its residents—using their personal information, derived from databases opеrated by state and local governments in Illinois—to advertise its subscription services. Doc. 1-1 at ¶ 20 & pp. 8-9. Whitepages‘s Illinois-directed conduct, far from being “random, fortuitous, or attenuated,” “demonstrate[s] a real relationship
Injuries Arising from Forum-Related Activity. The complaint alleges that Lukis suffered emotional and financial harm due to Whitepages‘s deploying her personal information in free previews used to advertise its subscription services. Doc. 1-1 at ¶¶ 27-28. As shown above, Whitepages‘s conduct was directed towards Illinois. It follows that Lukis‘s alleged injuries arise from Whitepages‘s forum-related conduct. See Tamburo, 601 F.3d at 709 (finding personal jurisdiction where the defendants “expressly aimed thеir allegedly tortious conduct at [the plaintiff] and his Illinois-based business for the purpose of causing him injury there” and where “these ‘contacts’ with the forum state [were] the cause in fact and the legal cause of [the plaintiff‘s] injury“).
Fair Play and Substantial Justice. As noted, exercising personal jurisdiction over a defendant must “comport with traditional notions of fair play and substantial justice.” N. Grain, 743 F.3d at 492. The factors relevant to this requirement include “the burden on the defendant, the forum State‘s interest in adjudicating the dispute, the plaintiff‘s interest in obtaining convenient and effective relief, the interstate judicial system‘s interest in obtaining the most efficient resolution of controversies, and the sharеd interest of the several States in furthering fundamental substantive social policies.” Felland, 682 F.3d at 677 (quoting Burger King, 471 U.S. at 477). Here, exercising jurisdiction over Whitepages satisfies this requirement. Lukis alleges tortious activity directed toward Illinois, Doc. 1-1 at ¶¶ 8-10, 20 & pp. 8-9, and Illinois has a “strong interest in providing a forum for its residents ... to seek redress for tort injuries suffered within the state and inflicted by out-of-state actors.” Tamburo, 601 F.3d 709. Further underscoring Illinois‘s interest in this case, Lukis alleges tortious activity resulting from Whitepages‘s use of the State‘s own public records and those of its local governments. Doc. 1-1 at ¶ 20.
Whitepages‘s contrary arguments, to which it devotes only a paragraph, do not persuade. Whitepages contends that it would face a “significant burden” if subjected to personal jurisdiction because it is “an out-of-state company with no contacts in the state of Illinois.” Doc. 17 at 13. This argument fails because, as shown above, Whitepages has had significant purposeful contacts with Illinois, Doc. 1-1 at ¶¶ 8-10, 20 & pp. 8-9, that gave rise to Lukis‘s alleged injury, id. at ¶¶ 27-28. Whitepages also argues that “the interests of judicial economy and the shared interests of the states would be best served by handling litigation against Whitepages in its home state [Washington], where there would be more ready access to evidence and greater oversight by state officials.” Doc. 17 at 13. But Whitepages fails to specify how using Washington as а forum would provide “more ready access to evidence” or “greater oversight,” and any such marginal gain in judicial economy would be outweighed by Illinois‘s “strong interest in providing a forum for its residents ... to seek redress for tort injuries suffered within the state and inflicted by out-of-state actors.” Tamburo, 601 F.3d 709; see also Illinois v. Hemi Grp. LLC, 622 F.3d 754, 760 (7th Cir. 2010) (“[The ‘fair play and substantial justice‘] factors rarely will justify a determination against personal jurisdiction because there are other mechanisms available ... to accommodate the various interests at play.“) (internal quotation marks omitted); Felland, 682 F.3d at 677 (“[W]here a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, hе must present a compelling case that the presence of some other considerations
II. Whether Plaintiffs State IRPA Claims
Plaintiffs allege that Whitepages and Instant Checkmate violated Section 30(a) of the IRPA, which provides: “A person may not use an individual‘s identity for commercial purposes ... without having obtained previous written consent[.]”
A. Commercial Purpose
Whitepages contends that its free previews identifying Lukis did not serve a “commercial purpose[]” within the meaning of Section 30(a). Doc. 17 at 13-14. The IRPA defines “commercial purpose” to mean “the public use or holding out of an individual‘s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.”
In pressing the opposite result, Whitepages cites Dobrowolski v. Intelius, Inc., No. 17 C 1406 (N.D. Ill. May 21, 2018), ECF No. 62, which dismissed IRPA claims brought against other purveyors of background reports. Doc. 17 at 14. Much like Whitepages, the defendants in Dobrowolski used the plaintiffs’ identities—their names, ages, employment histories, and locations—in free previews to advertise the defendants’ background report products. Dobrowolski, slip op. at 1-2. As the Dobrowolski court described it, however, the defendants there used the free previews to advertise only background reports regarding the person identified in the preview. Id. at 5 (“The marketing page lists defendants’ reports that are available for purchase, and for each listing there is a preview of the information in the underlying report.“). Given this, the court held that “[t]he plaintiffs’ identities are not used to promote a separate product—they are used because plaintiffs’ identities are part of the product offered for sale“—and for that reason were not being used for a сommercial purpose under Section 30(a). Ibid. (citing Thompson v. Getty Images, Inc., 2013 WL 3321612, at *2 (N.D. Ill. July 1, 2013) (“The Court is unpersuaded that showing a buyer a photograph of a person that she is considering whether to buy qualifies as a ‘commercial purpose’ as the [IRPA] uses that term.“)). Here, by contrast, Whitepages used Lukis‘s identity to advertise not a background report regarding Lukis, but a monthly subscription
Rеlatedly, Whitepages contends that the IRPA does not apply here because its free previews merely amalgamated otherwise public information about Lukis. Doc. 17 at 15-16. This argument fails because Section 30(a) covers all aspects of a person‘s identity, whether the information is derived from public or private sources. See Gabiola, 2017 WL 4264000, at *2 (holding that the plaintiff properly alleged an IRPA claim where the defendant “use[d] software to copy the information publicly available on the websites [of] departments of corrections“).
B. Identity
As noted, Section 30(a) prohibits the “use [of] an individual‘s identity for commercial purposes ... without having obtainеd previous written consent[.]”
The argument fails because Whitepages did far more than use the name “Stephanie Lukis” in advertising its monthly subsсription services, and Instant Checkmate did far more than use the names “Stephanie Lukis” and “Robert Fischer” in advertising its service. Rather, Whitepages associated “Stephanie Lukis” with a middle initial, an age range, two telephone numbers, a Chicago address, a Virginia address, and as a relation of Paul M. Lukis, Doc. 1-1 at pp. 8-9, and Instant Checkmate associated “Stephanie Lukis” and “Robert Fischer” with middle initials, exact ages, past cities and states of residence, and possible relatives, Doc. 1-1 at p. 8 (19 C 4892). Given this, it is entirely plausible, as Plaintiffs allege, that Lukis could be uniquely identified as the Stephanie Lukis, and Fischer could be uniquely identified as the Robert Fischer, rеferenced in the previews. Doc. 1-1 at ¶¶ 23-24; Doc. 1-1 at ¶¶ 23-24 (19 C 4892). It follows that the previews used Plaintiffs’ “identit[ies]” within the meaning of Section 30(a). See
C. IRPA Exclusions
1. Section 35(b)(1)
Section 35(b)(1) provides that the IRPA does not apply to “use of an individual‘s identity in an attempt to portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio-visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commеrcial advertisement for a product, merchandise, goods, or services.”
2. Section 35(b)(2)
Section 35(b)(2) provides that the IRPA does not apply to “use of an individual‘s identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign.”
As with Instant Checkmate‘s appeal to Section 35(b)(1), Defendants’ invocation of Section 35(b)(2) forgets that Plaintiffs’ claims are directed towards the free previews, not toward the subscriрtion services advertised by the previews. And as shown in Section II.A, supra, the free previews serve a “commercial purpose” under Section 30(a), which necessarily means that they do not serve a “non-commercial purpose[]” under Section 35(b)(2). See Maksym v. Bd. of Elec. Comm‘rs of City of Chi., 950 N.E.2d 1051, 1062 (Ill. 2011) (“[W]here the same, or substantially the same, words or phrases appear in different parts of the same statute they will be given a generally accepted and consistent meaning, where the legislative intent is not clearly expressed to the contrary.“) (internal quotation marks omitted); see also U.S. Fire Ins. Co. v. Barker Car Rental, 132 F.3d 1153, 1156 (7th Cir. 1997) (“[I]n ascertaining the meaning of [an Illinois statute], we must apply the same rules of statutory construction that the Supreme Court of Illinois would apply if it were faced with the same task.“). It follows, at least on the pleadings, that Defendants are not protected by Section 35(b)(2).
3. Section 35(b)(4)
Section 35(b)(4) provides that the IRPA does not apply to “promotional materials, advertisements, or commercial announcements for a use described” in Sections 35(b)(1) and (b)(2).
Defendants’ argument rests on the premise that their background reports qualify as “a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio-visual work,”
D. Communications Decency Act
Whitepages contends that Lukis‘s IRPA claim is barred by the Communications Decency Act of 1996 (“CDA“),
On the present record, Whitepages did not act as a merе passive transmitter or publisher of information that was “provided by another information content provider.” Doc. 17 at 19. Rather, it is alleged to have actively compiled and collated, from several sources, information regarding Lukis. Doc. 1-1 at ¶ 17. The CDA therefore does not shield Whitepages from liability. See Huon, 841 F.3d at 742 (holding that the CDA did not protect Gawker from liability where it “edited, shaped, and choreographed” the content of the comments it published online) (internal quotation marks omitted); cf. Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) (holding that the CDA protected Craigslist from liability because “[n]othing in the service [it] offer[ed] induce[d] anyone to post any particular listing or express a preference for discrimination“).
E. First Amendment
Finally, Whitepages argues that its free previews are entitled to First Amendment protection because they simply “promote Whitepages’ directory, which is itself protected by the First Amendment.” Doc. 17 at 16. As with Defendants’ invocation of Section 35(b)(4), see Section II.C.3, supra, because no background report is in the record, it is impossible to agree, as a matter of law and at this juncture, with Whitepages‘s submission that its reports are protected by the First Amendment and therefore with Whitepages‘s argument that the previews do nothing more than advertise First Amendment-protected materials.
Conclusion
Whitepages‘s and Instant Checkmate‘s motions to dismiss are denied. Each shall
April 16, 2020
Gary Feinerman
United States District Judge