On Wednesday, the judge overseeing the right to publicity suit against Ancestry.com paused proceedings until the Ninth Circuit Court of Appeals issues a decision deciding the fate of a similar suit against Ancestry. Judge Gloria M. Navarro opined that although the appellate tribunal’s decision will not be dispositive, its ruling will be instructive as to whether the plaintiffs have constitutional standing and the viability of Ancestry’s Communications Decency Act (CDA) Section 230 defense.
The online genealogy company constructs a database from personal information scraped from school yearbooks, that is then compiled into digital records that correspond to and identify individuals, the lawsuit says. In 2020, Nevada consumers sued Ancestry for using their names and likenesses for commercial purposes without their consent.
Last September, the Nevada court dismissed three of four causes of action, leaving only the right to publicity claim in place. Later, the court declined to strike the right to publicity claim as violative of Nevada’s anti-SLAPP suit, a free speech defense, that if successful, negates standing. Judge Navarro concluded that the subject matter of the suit, photographs and personally identifying information, did not implicate matters of public concern.
The defendants appealed that ruling and subsequently asked for a stay pending the Ninth Circuit’s ruling in Callahan v. Ancestry.com, a Northern District of California case dismissed for failure to satisfy the injury-in-fact element of the Article III standing requirement.
In this week’s opinion, the court ruled that because the issues before it overlap with those before the Ninth Circuit, an opinion from the appellate tribunal could entirely sway the case’s future, warranting a stay. Judge Navarro noted that though the right to publicity claims arise under different but similar laws, and that the appellate decision would not necessarily dictate the case’s result, it would be “preferable” to stay proceedings.
In addition, and though the court previously denied Ancestry’s CDA Section 230 defense immunizing website platforms from liability with respect to third-party content, it said that the Ninth Circuit’s say on the matter in Callahan could impact the case.
Finally, the court considered the fairness factors applicable to its stay analysis. “Allowing the parties to continue with the present case before the Ninth Circuit decides those appeals could impose a hardship on the parties by forcing them to commit and expend financial resources to continue pursuing and defending causes of action that may not survive,” the court cautioned. It also noted that waiting for a decision in Callahan would conserve judicial resources.The plaintiffs are represented by Knepper & Clark LLC and Morgan & Morgan Complex Litigation Group. Ancestry is represented by Cohen-Johnson LLP and Quinn Emanuel Urquhart & Sullivan, LLP.
