United States District Court, N.D. Illinois, Eastern Division
JOHN VRDOLYAK, individually and on behalf of those similarly situated, Plaintiff,
AVVO, INC., Defendant.
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge.
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. 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.
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.
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.
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]
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).
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).
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.
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).
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.
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).
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