Post-Appeal Motion for Indicative Ruling Filed in Right to Publicity Case

According to a submission filed late last week, plaintiffs in the personal information misappropriation case have asked the trial court to take another look at whether they sufficiently alleged standing. The motion asserts that the Supreme Court’s TransUnion LLC v. Ramirez decision, issued 10 days after the plaintiffs’ case was dismissed with prejudice, constitutes an “intervening change in controlling law.”

In their complaint, the plaintiffs alleged that the defendants operate a network of genealogical and historical record websites and sued them for misappropriating personal information without consent and using it for advertising and other promotional purposes. In its June opinion, the Northern District of California court overseeing the case found that the plaintiffs failed to show that the usage caused harm to those searchable on the defendants’ websites.

Specifically, Magistrate Judge Laurel Beeler found no Article III standing absent the articulation of concrete injuries. The court also ruled that was immune from liability under the Communications Decency Act. The plaintiffs appealed the entirety of the ruling in July.

Last week’s motion argues that the court should reconsider the issue because six of the seven factors used to determine the propriety of a Federal Rule of Civil Procedure 60(b)(6) reconsideration ruling weigh in the plaintiffs’ favor. In particular, they assert that there is a “close connection” between the court’s dismissal order and TransUnion because the latter “modifies the standing analysis upon which this Court based its ruling.” The high court’s decision clarifies that district courts analyzing statutory standing must examine whether the statute is rooted in a common law right, which the plaintiffs argue the court failed to do previously.

The plaintiffs also make light of a decision recently rendered by the District of Nevada, denying’s motion to dismiss parallel statutory right of publicity claims. That ruling, based on TransUnion, specifically declined to follow Judge Beeler’s standing conclusion because her opinion ‘“did not address whether the plaintiffs’ statutory injury had a common law analog as required by Spokeo and TransUnion.’”

The motion requests either an indicative ruling stating that Judge Beeler would grant a motion to reconsider her previous decision or an indicative ruling that the motion represents a “substantial issue” and that the judge would accept remand from the Ninth Circuit to hear it. The plaintiffs are represented by Morgan & Morgan Complex Litigation Group and Benjamin R. Osborn. is represented by Quinn Emanuel Urquhart & Sullivan, LLP.