Right-of-Publicity Class Actions Dealt Big Blow, Says Akin Gump

The 7th Circuit U.S. Court of Appeals dealt a significant blow to litigators who have increasingly used state right of publicity statutes to bring class actions against companies that sell personally identifiable information to third-party marketers, data aggregators and brokers, said Akin Gump in an analysis Wednesday. The statutes are based on the common law right to prevent the unauthorized use of one’s identity for commercial gain, it said. Class actions brought under these laws “have tended to target conduct well outside the realm traditionally thought to be prohibited by the common law right of publicity,” it said. Chief among these have been actions “seeking to aggregate the claims of consumers included on mailing lists sold in the direct mail marketplace, on the theory that those on the mailing list have suffered a common injury protected by the statutory right of publicity,” it said. The 7th Circuit in Huston v. Hearst Communications issued a decision last week in a putative Illinois Right of Publicity Act class action “laying these claims to rest,” said Akin Gump. “Applying straightforward principles of statutory construction and federal rules of pleading, the court soundly rejected a liability theory that has been repeatedly pursued to assert claims against companies that sell personally identifiable information to third parties.”