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Vrdolyak v. Avvo, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 12, 2016

JOHN VRDOLYAK, individually and on behalf of those similarly situated, Plaintiff,
v.
AVVO, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert W. Gettleman United States District Judge.

         Plaintiff John Vrdolyak, individually and on behalf of others similarly situated, has brought an amended putative class action complaint against defendant Avvo, Inc., alleging that defendant violates the Illinois Right of Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq., by using plaintiff's identity for commercial purposes without plaintiff's consent.[1] Defendant has moved to dismiss for failure to state a claim, arguing that its allegedly wrongful conduct is fully protected under the First Amendment to the United States Constitution and, even if not, defendant's use of plaintiff's name is for a non-commercial purpose exempted under the IRPA. For the reasons described below, defendant's motion is granted.

         FACTS[2]

         Defendant operates the website Avvo.com on which it promotes certain legal services, and publishes a directory of attorneys in the United States. It creates a profile page for each attorney that consists of information gleaned from public records “such as bar admissions and other court or regulatory records.” The profile page contains the attorney's name, education, address, phone number, and practice area. Defendant provides a rating for each attorney on a scale of 1 to 10. The rating is purportedly based on information available to defendant which, for most attorney profiles, consists of the number of years in practice. Defendant's rating system has been the subject of other litigation, see Browne v. Avvo, Inc., 525 F.Supp.2d 1249 (W.D. Wash. 2007), but is not at issue in the instant matter.

         Defendant does not charge attorneys for listing their profiles, but does not get their consent either. It does not charge consumers for using or viewing the information provided on the profiles. An attorney can “claim” his or her profile for free, and then make changes to the information provided and add additional information such as awards and case histories. According to plaintiff, defendant “generates revenue by selling legal services, advertising, and other services primarily to lawyers.” Specifically, plaintiff alleges that defendant sells two levels of advertising to lawyers. The first, called “Avvo Advertising” allows lawyers to purchase advertising and “define who sees your ad based on practice area and geography.” Lawyers who purchase Avvo Advertising have their ads (basically a link to their own profile) displayed as “Sponsored Listings” on the profile pages of attorneys who do not pay defendant, and who practice in the same geographically and/or practice areas as the paying attorney.

         For an additional fee, attorneys can join “Avvo Pro” which guarantees them that no “Sponsored Listings” or other advertising will appear on their profile pages. Plaintiff claims that defendant's implementation of Avvo Pro is a “means to coerce Non-Paying Attorneys into paying Defendant a marketing fee so that Defendant will not misappropriate Non-Paying attorneys' identities or sell advertising space on Non-Paying attorneys' profile pages to [their] competitors.”

         DISCUSSION

         Plaintiff claims that by placing ads for competing attorneys on his profile page (as well as ads for defendant's own legal services) defendant has misappropriated plaintiff's identity for commercial purposes in violation of the IRPA. To state a claim under the IRPA, plaintiff must allege: (1) the use of his identity; (2) for commercial purposes; and (3) without his consent. 765 ILCS 1075/30; Best v. Berard, 776 F.Supp.2d 752, 756 (N.D. Ill. 2011).

         Defendant has moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Such a motion tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating the motion, the court accepts the well-pleaded factual allegations as true and draws all reasonable inferences in plaintiff's favor. McMillian v. Collection Professionals Inc., 455 F.3d 754, 758 (7th Cir. 2006). To state a claim, the complaint must allege sufficient facts that, if true, would raise a right to relief above the speculative level showing that the claim was plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To be plausible on its face, the complaint must plea facts sufficient for the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Defendant argues that the complaint fails to state a claim for two separate but related reasons. First, it argues that its conduct is speech that is fully protected by the Free Speech Clause of the First Amendment. Next, it argues that its use of plaintiff's name is exempted from the IRPA. The two arguments are related because they rely on defendant's assertion that its speech is non-commercial in nature.

         The First Amendment prohibits the government from “abridging the freedom of speech.” United States Const. Amendment I. “[N]ot all speech is of equal First Amendment importance, ” however, meaning certain categories of speech receive a lesser degree of constitutional protection. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014) (quoting Snyder v. Phelps, __ U.S. __, 131 S.Ct. 1207, 1215 (2011)). Commercial speech is one such category that does not receive full constitutional protection. Id. Instead, commercial speech is entitled only to intermediate scrutiny, and as such may be subject to the IRPA. See Central Hudson Gas & Elec. Corp. v. Public Service Comm. of N.Y., 447 U.S. 557, 563-66 (1980).

         For purposes of the instant case, defendant argues that its listing and profiles, including the “Sponsored Listings, ” is fully protected non-commercial speech subject to strict scrutiny that can be restricted “only in the most extraordinary circumstances.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983). Defendant argues that no such circumstances are present, preventing the court from applying IRPA to defendant's publication and providing a complete defense to plaintiff's claims. Plaintiff seems to accept this premise, or at least has not argued differently, choosing instead to argue only that defendant's actions constitute commercial speech that is not fully protected. As the Seventh Circuit noted in Jordan, however, even if defendant's listings qualify as non-commercial speech, “it's far from clear that [the plaintiff's] . . . right of publicity claim [ ] fail[s] without further ado.” Jordan, 743 F.3d at 514. Nonetheless, because plaintiff appears to agree (or perhaps assume) that his claim is barred if defendant's actions are considered non-commercial, the court will proceed on that basis.

         According to the Supreme Court, “commercial speech is speech that proposes a commercial transaction.” Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 482 (1989). The Seventh Circuit has explained that “the hallmark of commercial speech is that it pertains to commercial transactions, including those facilitated through the use of a trademark.” Jordan, 743 F.3d at 516 (quoting Briggs & Stratton Corp. v. Baldridge, 728 F.2d 915, 917-18 (7th Cir. 1984). This definition is, however, just a starting point. Id. Thus, “[s]peech that does no more than propose a commercial transaction ‘falls within the core notion of commercial speech, ' but other communications also may constitute commercial speech notwithstanding the fact that they contain discussions of important public issue.” Id. (quoting Fox, 492 U.S. at 475).

         Classifying speech that contains both commercial and non-commercial elements can be difficult. Interpreting Bolger, 463 U.S. at 66-67, the Seventh Circuit has listed relevant considerations to include “whether: (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech.” U.S. v. Benson, 561 F.3d 718, 725 (7th ...


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