A federal appeals panel in San Francisco won’t let Dun & Bradstreet use California’s SLAPP statute to undercut a class action accusing it of violating state intellectual property law.
Odette Batis sued the commercial data analytics firm, challenging the inclusion of her name and contact information in the company’s D&B Hoovers database. The company moved to strike the complaint, invoking Strategic Lawsuit Against Public Participation provisions enacted to quickly end lawsuits lacking legitimate legal footing without forcing defendants into protracted and often expensive litigation.
U.S. District Judge Maxine Chesney rejected that attempt, finding Dun & Bradstreet didn’t show how the activity incorporated in Batis’ allegations was protected. The company challenged that ruling before the U.S. Ninth Circuit Court of Appeals. Judge Richard Clifton wrote the panel’s opinion, filed July 8. Judge Milan Smith concurred, as did Judge Eugene Siler of the Sixth Circuit, sitting by designation.
According to court records, D&B Hoovers is a business-to-business database that includes contact information for millions of employees who work for the included companies. Batis’ complaint alleged certain information is available to anyone adjacent to advertisement for an annual subscription that costs more than $10,000.
Batis, a librarian, sued the company in March 2022, alleging her information and that of millions of others is being used without consent to promote subscriptions. The complaint says that arrangement constitutes a commercial use violating California unfair competition and right of publicity laws along with “tortious misappropriation of her name and likeness,” Clifton wrote.
In seeking dismissal, Dun & Bradstreet argued Batis’ lawsuit challenged its free speech rights and made the alternative claim she lacked standing for failure to state a claim. When the company appealed Chesney’s denial of that motion, the Ninth Circuit affirmed through a memorandum disposition invoking its own 2023 opinion, Martinez v. ZoomInfo Technologies.
The court later vacated Martinez and ordered it to be reheard by the entire Ninth Circuit, but the parties settled before that hearing. The panel then withdrew its disposition and reconsidered Dun & Bradstreet’s appeal, which turned on Batis’ argument her class action sought to enforce an “important right affecting the public interest.”
“California courts are clear that plaintiffs can still invoke the public interest exemption even if their lawsuit seeks monetary relief,” Clifton wrote, adding that the state’s “courts have only barred plaintiffs from invoking the public interest exemption when they seek relief to which other class members would not be entitled on the face of the complaint.”
Dun & Bradstreet argued Batis’ pursuit of emotional distress damages is the kind of “highly individualized” claim that negates a public interest position, but the panel noted Batis sought such damages on behalf of the class, making them potentially available to any class subset.
Clifton said California’s courts “enshrined a state constitutional right to privacy” almost 100 years ago as the entertainment industry began taking hold, and “have continued to underscore the state’s public policy commitment to protecting its citizens’ property and privacy rights, confirming that the unauthorized use of a person’s name for commercial exploitation is actionable even when targeted at private citizens with no public reputation.”
Further, Clifton pointed to a 1972 statewide ballot measure in which California voters explicitly made privacy a right under the state constitution. He also noted the most one person could collect in statutory damages is $750 and there is no record of any public entity trying to stop Dun & Bradstreet from the conduct Batis alleges.
Finally, the panel acknowledged some works are “so important that protecting them from suit must override the important policy goals furthered by the public interest exemption,” but determined D&B Hoovers doesn’t fit into those narrow categories.
“A database of professional contact information used to facilitate commercial transactions does not” check those boxes, Clifton wrote, noting there is no way to construe D&B Hoovers as a piece of expression or a “literary work.”
Batis is represented by the Law Office of Benjamin Osborn, Brooklyn; and Morgan & Morgan, San Francisco. The firm declined to comment.
Dun & Bradstreet is represented by Riker Danzig, of Morristown, N.J.; and Ballard Spahr, of Denver, Los Angeles and Washington, D.C. The company did not respond to a request for comment.
Rebecca Tushnet, of Harvard University Law School, filed a support brief on behalf of Intellectual Property and First Amendment Law Professors.