Monday, September 28, 2026
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Ninth Circuit Upholds Class Certification in Case Against Online Yearbook Company
Opinion Rejects View That Breach of Right-of-Publicity Requires Individualized Evaluation Because Ordinary People May Not Have Economic Interest in Use of Their Name
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Thursday affirmed a class-certification order in a lawsuit accusing PeopleConnect Inc. of violating California’s right-of-publicity law by hosting a website that publishes online versions of old yearbooks for which users can search by name to locate a party’s photograph and other information.
At issue is whether the publication violations California Civil Code §3344, which provides for damages “in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages” and specifies:
“Any person who knowingly uses another’s name,…photograph, or likeness…on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without that person’s prior consent…shall be liable for any damages sustained by the person…injured as a result thereof.”
Senior Circuit Judge Marsha Berzon, writing for the court, noted that the plaintiff had asserted that the website allows a guest user to hunt for old classmates for free but will only provide a low-resolution thumbnail of the available record unless the party accepts a prompt to register and agrees to consent to the disclosure of her own information upon the first search to obtain it. Banner advertisements also purportedly display alongside search-result pages.
Rejecting the view that §3344 requires individualized proof of injury, she wrote:
“The district court held that if PeopleConnect were found to have used each class member’s name in direct connection with advertising, ‘then it can reasonably be inferred that the name…has some economic value, even if small.’ That common-sense inference…is not an abuse of discretion.”
She continued: “Although a Joe Schmoe could not command the kind of multi-million-dollar endorsement deal that might be offered to a celebrity, it is reasonable to infer that even an average person whose likeness a company seeks to use in connection with advertising could negotiate at least a nominal licensing fee for such use. A plaintiff deprived of such compensation has suffered a cognizable economic injury under the statute, even if a small one.”
Adequate Representative
The jurist was similarly unconvinced that Nolen was an inadequate class representative because, although she alleged that her name and likeness is available on the website, she did not assert that anyone had ever actually searched for her records.
Addressing the defendant’s contention that Nolen was “sacrificing” allegedly stronger claims by “searched” members of the class in favor of weaker “searchable” ones that were available to everyone whose information appeared on the site, Berzon recognized that “[o]ur circuit has never squarely addressed a situation in which a lead plaintiff’s strategic choice to pursue one legal theory while forgoing another might create an intraclass conflict.”
Noting that the defendant failed to raise the issue below, she declared:
“The issue appears to raise a matter of first impression in this circuit concerning Rule 23’s adequacy prong. We therefore provide some guidance to the district court with regard to the potential conflict issue as it now stands.”
She remarked:
“[W]hen evaluating under Rule 23(a)(4) a class representative’s decision to bring only certain claims or seek only certain types of relief (as opposed to her incentive to release the defendant from claims she never had standing to bring), courts should consider whether such a decision secures the benefits of aggregate litigation, as well as whether it strikes a justifiable balance between the value of any abandoned claims and the value of the relief sought.”
Allegations in Complaint
The lead plaintiff, California resident Alicia Nolen, alleged in the operative complaint, filed in March 2023, that the Seattle-based defendant hosts an online library of more than 450,000 yearbooks that have been scanned and run through a program that makes the text of the publications searchable. She further alleged:
“By misappropriating and misusing millions of Californian’s names, photographs, and likenesses without consent, Classmates has harmed Plaintiffs and the class by denying them the economic value of their likenesses, violating their legally protected rights to exclusive use of their likenesses, infringing their intellectual property without compensation, and disturbing their peace of mind. Classmates has also earned ill-gotten profits and been unjustly enriched.”
Senior District Court Judge Edward M. Chen of the Northern District of California certified two classes of California residents “who are not” registered users “for whom a search of their name…yields at least one record…from a California yearbook that Classmates.com first made publicly available on or after December 18, 2018.” The Ninth Circuit granted PeopleConnect’s request for permission to appeal.
Searched Versus Searchable
Berzon declined to address whether §3344 requires a claimant to have been searched or only to be searchable, rejecting the defendant’s argument that the issue goes to predominance because the proof required for each type of plaintiff would be different. She wrote:
“We reject this predominance challenge because it goes to the merits of the class’s § 3344 claims, not to whether the class can be certified.”
The judge remarked:
“PeopleConnect may eventually be proven right that the class’s claims fail on the merits if they rest on evidence of searchability alone. But ‘a district court cannot decline certification merely because it considers plaintiffs’ evidence relating to the common question to be unpersuasive and unlikely to succeed in carrying the plaintiffs’ burden of proof on that issue.’ ”
The case is Nolen v. PeopleConnect Inc., 24-3894.
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