Kellman v. Spokeo, Inc.

• Court: District Court, N.D. California
• Decided: May 29, 2024
• Docket: 3:21-cv-08976
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AVIVA KELLMAN, et al., Case No. 21-cv-08976-WHO

8 Plaintiffs, ORDER REGARDING CLASS 9 v. CERTIFICATION

10 SPOKEO, INC., Defendant. 11

12 13 Defendant Spokeo, Inc., (“Spokeo”) runs a website that collects consumer and public data 14 from various public sources and private vendors, associates that data with particular names, and 15 publishes it online. The plaintiffs here are Aviva Kellman, Jason Fry, Nicholas Newell, Susan 16 Gledhill Stephens, and William Williams V. They assert that their statutory rights of publicity and 17 common law rights regarding misappropriation of name and likeness were and are being violated 18 by Spokeo’s publication of their personal information. They seek class certification against 19 Spokeo for four classes of people in California and Ohio.1 For the following reasons, the motion 20 is granted. 21 BACKGROUND 22 A. FACTUAL BACKGROUND 23 Much of the relevant case background was discussed in detail in my prior order addressing 24 the defendant’s motion to dismiss. (“Prior Order”) [Dkt. No. 41]. This Order assumes familiarity 25 with the Prior Order and reproduces key facts, including those based on newly discovered 26 evidence. 27 1 Spokeo is headquartered in Pasadena, California; it owns and operates the website 2 || spokeo.com. See Second Amended Complaint (“SAC”) [Dkt. No. 123] 958; Answer [Dkt. No. 3 129] 4.58. Spokeo collects data and information about the American adult public from public 4 || sources and data vendors. Deposition of Mike Daly (“Daly Depo.”) [Dkt. No. 91-8] 133:25- 5 134:1, 156:3-161:11. 6 Using proprietary algorithms and systems, Spokeo “attempt[s] to collect and aggregate and 7 merge all that data into persons, person objects, which are then designated with a unique [personal 8 identifier or ‘PID’ for that person object.” Jd. 21:12—21. That aggregated data, associated with a 9 || particular PID, can then be searched for by users of the website. See id. 39:3-40:21. It is also 10 || used to populate “teaser profiles,” id. 22:18-21, which can be viewed by the public without a 11 subscription to the website. Any visitor to spokeo.com can search for a specific teaser profile, 12 || using aname, phone number, address, or email. See, e.g., SAC 63. Each teaser profile contains 5 13 at least a name and address. Daly Depo. 60:6-8. 14 The plaintiffs here each found a teaser profile associated with their personal information. 3 15 See SAC ff 61, 77, 93, 109, 141. For example, the teaser profile for Kellman shows: A 16 pense ae a iar sik = 17 oo Kelman > Ava sis 5 ii rs i Z 18 | Aviva Shira Kellman, Age 41 19 () (ees =a 20 toate aapalaei tana ( 21 © Contacts © Locations © Family © Social ®@ Court @ And More

24 om Seay oe i 25 oe et =“

27 28

1 oO aieane am hae

5 ee oe. a= 6 oe ° Tae ETE “Ss 9 <= | Ss soeee’ |) | 2) haere 10 oo 11 hanes ne

12 || Id. 9 61. 5 13 The teaser profiles advertise additional personal information about the subject of the 14 profile, including about their family, court records, sex offender registration status, marital status, 3 15 and more. See id. 4/62. Visitors to spokeo.com can pay to access this additional information, 16 || including by paying for a single report or a subscription. See id. {| 66-67. 3 17 The plaintiffs say that they did not consent to Spokeo’s use of their information on its 18 website. See id. J] 60, 76, 92, 108, 140. Their theory of the case is that Spokeo unfairly and 19 || unlawfully profited by publishing their personal information in the teaser profiles, thereby enticing 20 || consumers to pay Spokeo so they could access additional information about people. Plaintiffs all 21 say that they suffered emotional and mental injury stemming from this nonconsensual loss of 22 control of their personal information. See id. J] 72-74, 88-90, 104-06, 121-22, 153-54. At least 23 one distinct consumer viewed Stephens’s profile and viewed Williams’s profile prior to 24 || purchasing a subscription. /d. J] 116, 148. 25 As result of these alleged injuries, the plaintiffs filed a class action in this court. 26 || B. PROCEDURAL BACKGROUND 27 The plaintiffs filed their complaint in November 2021, [Dkt. No. 1], and their operative 28 || second amended complaint in September 2023, (“SAC”) [Dkt. No. 123]. Spokeo filed an answer.

1 (“Answer”) [Dkt. No. 129]. 2 I previously denied Spokeo’s motion to dismiss. (“Prior Order”) [Dkt. No. 41]; see also 3 Kellman v. Spokeo, Inc., 599 F. Supp. 3d 877 (N.D. Cal. 2022), motion to certify appeal denied, 4 No. 3:21-CV-08976-WHO, 2022 WL 2965399 (N.D. Cal. July 8, 2022). I denied Spokeo’s 5 motion to certify the order for interlocutory appeal. [Dkt. No. 64]. 6 Now the plaintiffs have filed their motion for class certification, seeking to certify two 7 nationwide classes, two California classes, and two Ohio class. (“Mot.”) [Dkt. No. 91-3]; see also 8 Supplement to Motion for Class Certification (“Mot. Suppl.”) [Dkt. No. 127]. Spokeo opposed. 9 (“Oppo.”) [Dkt. No. 141-3]. The plaintiffs replied. (“Repl.”) [Dkt. No. 154-3]. 10 Spokeo also moved to exclude the declaration and testimony of plaintiffs’ expert, Michael 11 Naaman. (“Naaman Mot.”) [Dkt. NO. 141-4]. The plaintiffs opposed. (“Naaman Oppo.”) [Dkt. 12 No. 154-6]. Spokeo replied. (“Naaman Repl.”) [Dkt. No. 173-3]. 13 Spokeo also moved to exclude the declaration and testimony of plaintiffs’ expert, Steven 14 Weisbrot. (“Weisbrot Mot.”) [Dkt. No. 173-4]. The plaintiffs opposed. (“Weisbrot Oppo.”) [Dkt. 15 No. 1522]. Spokeo replied. (“Weisbrot Repl.”) [Dkt. No. 173-4]. 16 The plaintiffs also filed a motion to exclude Spokeo’s expert, David Alfaro. (“Alfaro 17 Mot.”) [Dkt. No. 167-7]. Spokeo opposed. (“Alfaro Oppo.”) [Dkt. No. 175-3]. The plaintiffs 18 replied. (“Alfaro Repl.”) [Dkt. No. 177-4]. 19 Finally, Spokeo filed a motion to strike. (“Strike Mot.”) [Dkt. No. 168]. The plaintiffs 20 filed an opposition. (“Strike. Oppo.”) [Dkt. No. 176]. 21 I held a hearing at which counsel for both parties appeared. 22 LEGAL STANDARD 23 I. CLASS CERTIFICATION 24 Federal Rule of Civil Procedure 23 governs class actions. See Olean Wholesale Grocery 25 Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663–64 (9th Cir. 2022) (en banc). 26 2 The docket entry for this document asserts that it is redacted, but the document itself does not 27 appear to have redactions, and the plaintiffs did not file another unredacted version or a motion to 1 “[C]ertification is proper only if ‘the trial court is satisfied, after a rigorous analysis,’” that the 2 requirements of Rule 23 are met. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011) 3 (quoting Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 161 (1982)). “[P]laintiffs must prove the 4 facts necessary to carry the burden of establishing that the prerequisites of Rule 23 are satisfied by 5 a preponderance of the evidence.” Olean, 31 F.4th at 665. 6 A “plaintiff[] must make two showings” to certify its purported class. Olean, 31 F.4th at 7 663. “First, the plaintiffs must establish ‘there are questions of law or fact in common to the 8 class,’ as well as demonstrate numerosity, typicality, and adequacy of representation.” Id. 9 (quoting Fed. R. Civ. Proc. 23(a)).3 “Commonality requires the plaintiff to demonstrate that the 10 class members ‘have suffered the same injury,’” and the “claims must depend upon a common 11 contention.” Wal-Mart, 564 U.S. at 349–50 (quoting Falcon, 457 U.S. at 157). 12 “Second, the plaintiffs must show that the class fits into one of three categories” as 13 provided in Rule 23(b). Olean, 31 F.4th at 663. Under Rule 23(b)(3), a class may be certified if 14 “questions of law or fact common to class members predominate over the questions affecting only 15 individual members, and a class action is superior to other available methods for fairly and 16 efficiently adjudicating the controversy.” Fed. R. Civ. Proc. 23(b)(3). In deciding this, courts 17 consider: (A) the class members’ interests in individually controlling the prosecution or 18 defense of separate actions; 19 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 20 (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 21 (D) the likely difficulties in managing a class action. 22 Id. 23 3 Rule 23(a) provides: 24 One or more members of a class may sue or be sued as representative parties on 25 behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; 26 (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or 27 defenses of the class; and 1 Under Rule 23(b)(2), a class can be certified where “the party opposing the class has acted 2 or refused to act on grounds that apply generally to the class, so that final injunctive relief or 3 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. Proc. 4 23(b)(2). To establish standing for prospective injunctive relief, a plaintiff must demonstrate that 5 she “has suffered or is threatened with a concrete and particularized legal harm . . . coupled with a 6 sufficient likelihood that [s]he will again be wronged in a similar way.” Bates v. United Parcel 7 Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (internal quotation marks and citations omitted). A 8 plaintiff must establish a “real and immediate threat of repeated injury.” Id. (internal quotation 9 marks and citations omitted). “Past exposure to illegal conduct does not in itself show a present 10 case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present 11 adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). 12 “[P]laintiffs must prove the facts necessary to carry the burden of establishing that the 13 prerequisites of Rule 23 are satisfied by a preponderance of the evidence. In carrying the burden 14 of proving facts necessary for certifying a class under Rule 23(b)(3), plaintiffs may use any 15 admissible evidence.” Olean, 31 F.4th at 665 (citing Tyson Foods v. Bouaphakeo, 577 U.S. 442, 16 454-55 (2016)). While the class-certification analysis “may entail some overlap with the merits of 17 the plaintiff’s underlying claim, Rule 23 grants courts no license to engage in free-ranging merits 18 inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 19 465–66 (2013) (internal citations and quotation marks omitted). “Merits questions may be 20 considered to the extent—but only to the extent—that they are relevant to determining whether the 21 Rule 23 prerequisites for class certification are satisfied.” Id. (citation omitted). 22 In considering a motion for class certification, the substantive allegations of the complaint 23 are accepted as true, but “the court need not accept conclusory or generic allegations regarding the 24 suitability of the litigation for resolution through class action.” Hanni v. Am. Airlines, No. C-08- 25 00732-CW, 2010 WL 289297, at *8 (N.D. Cal. Jan. 15, 2010). The court may also “consider 26 supplemental evidentiary submissions of the parties.” Id. “[T]he ‘manner and degree of evidence 27 required’ at the preliminary class certification stage is not the same as ‘at the successive stages of 1 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). 2 C. DAUBERT MOTIONS TO EXCLUDE AND STRIKE 3 Federal Rule of Evidence 702 provides: 4 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s 5 scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based 6 on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the 7 facts of the case. 8 Courts apply the Daubert standard “in evaluating challenged expert testimony in support 9 class certification.” Sali, 909 F.3d at 1006. Under Daubert, courts “must assure that the expert 10 testimony ‘both rests on a reliable foundation and is relevant to the task at hand.”” City of 11 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014) (quoting Primiano v. Cook, 12 598 F.3d 558, 564 (9th Cir. 2010)). The testimony is “relevant if the knowledge underlying it has 13 a valid connection to the pertinent inquiry.” Id. at 1044 (quoting Primiano, 598 F.3d at 565). It is 14 “reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the 15 relevant discipline.” Id. (quoting Primiano, 598 F.3d at 565). Though courts should exclude 16 “unreliable nonsense opinions,” they do not exclude evidence for being shaky or opinions for 17 being impeachable or even wrong. See id. (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., 18 Inc., 738 F.3d 960, 969 (9th Cir. 2013)). 19 For reliability, the test looks at the “soundness of [the expert’s] methodology” rather than 20 the correctness of the opinions. Id. (citation omitted); see also Fed. R. Evid. 702. Courts “must 21 act as a ‘gatekeeper’ to exclude ‘junk science’ that does not meet Rule 702’s reliability standards 22 by making a preliminary determination that the expert’s testimony is reliable.” Cooper v. Brown, 23 510 F.3d 870, 943 (9th Cir. 2007). “Rule 702 demands that expert testimony relate to scientific, 24 technical or other specialized knowledge, which does not include unsubstantiated speculation and 25 subjective beliefs.” Id. 26 At class certification, admissibility of evidence “go[es] to the weight that evidence is 27 given” in the class certification analysis, but admissibility is not dispositive. Sali, 909 F.3d at 1 1006. 2 DISCUSSION 3 I. MOTION FOR CLASS CERTIFICATION 4 The plaintiffs seek to certify the following four classes: 5 California Viewed-Prior-to-Purchase Class (claims under California law; represented by proposed class representative Stephens): All California residents 6 who are not registered users of Spokeo.com and whose teaser profile was viewed by a user immediately prior to purchasing a Spokeo.com subscription on or after 7 November 19, 2019, where such teaser profile includes a name and home address. 8 Ohio Viewed-Prior-to-Purchase Class (claims under Ohio law; represented by Plaintiff Williams): All Ohio residents who are not registered users of Spokeo.com 9 and whose teaser profile was viewed by a user immediately prior to purchasing a Spokeo.com subscription on or after November 18, 2017, where such teaser profile 10 includes a name and home address. 11 California Published Teaser Profile Class (claims under California law; represented by Plaintiffs Kellman and Stephens): All United States residents who 12 are not registered users of Spokeo.com and whose teaser profile is searchable on 13 www.spokeo.com, where such teaser profile includes a name and home address. Ohio Published Teaser Profile Class (claims under Ohio law; represented by 14 Plaintiff Newell): All Ohio residents who are not registered users of Spokeo.com 15 and whose teaser profile is searchable on www.spokeo.com, where such teaser profile includes a name and home address. 16 Mot. i–ii; Mot. Suppl. 1. 17 Spokeo argues that none of the classes can or should be certified. I first address its 18 arguments about standing and then turn to the class certification considerations under the Federal 19 Rules, including Spokeo’s arguments about commonality, predominance, and superiority. 20 A. Standing 21 Spokeo contends that the plaintiffs do not have Article III standing to bring their claims at 22 all, let alone as class representatives. See Oppo. 7–11. I considered and rejected many of these 23 arguments in the Prior Order, and the others are similarly unpersuasive. The plaintiffs have 24 standing. 25 I previously addressed and rejected Spokeo’s arguments that the plaintiffs whose teaser 26 profiles were not viewed do not have standing. See Kellman, 599 F. Supp. 3d at 888–90; Oppo. 8– 27 10. The injuries that the plaintiffs assert based on the publication of their information—not the 1 viewing of their information—include the violation of their right to control their identities, the 2 plaintiffs’ mental and emotional harm, and the defendants’ unjust enrichment and profit. See SAC 3 ¶¶ 72–74 (Kellman), 88–90 (Fry), 104–06 (Newell). All were recognized under historical and 4 common law analogues, which is enough to assert a sufficiently concrete injury for Article III 5 standing. Cf. Kellman, 599 F. Supp. 3d at 889–90. Sufficient for standing at this class 6 certification stage, each Purchase class plaintiff has shown some evidence of this injury—that 7 Spokeo published teaser profiles with their names and addresses, and that they were damaged by 8 loss of control of their identities and emotional and mental harm. See SAC ¶¶ 66–67 (Kellman), 9 77, 82–83 (Fry), 93–94, 98–99 (Newell). Whether they can show that this harm is from that 10 publication and is legally sufficient to prove injury and yield a remedy is a common question that 11 will be resolved at summary judgment. Cf. Oppo. 9–10 (asserting the harm is speculative). 12 Spokeo’s new counterarguments are unpersuasive. First, it cites TransUnion LLC v. 13 Ramirez, 594 U.S. 413, 434 (2021), in which the Supreme Court held that where the appellant- 14 defendant stored inaccurate information about consumers but did not publish or disclose it to third 15 parties, the consumers could not show injury for standing. The plaintiffs tried to bring claims for 16 violations under the Fair Credit Reporting Act, which the Court analogized to defamation claims. 17 See id. at 431. The Court reasoned, “the plaintiffs’ harm is roughly the same, legally speaking, as 18 if someone wrote a defamatory letter and then stored it in her desk drawer.” Id. at 434. This case 19 differs for two interrelated reasons. The plaintiffs are bringing right to publicity and 20 misappropriation claims, not defamation claims, and Spokeo did publish the information—using 21 the Court’s analogy, it took the letter out of the drawer and tacked it to a public bulletin board. 22 The question now is whether publication alone is enough to create the requisite harm and prove 23 injury for right to publicity and misappropriation claims. That was not at issue in TransUnion. 24 For similar reasons, I am unpersuaded by Spokeo’s reliance on three recent cases that 25 found no standing for similar allegations. See Oppo. 8–9 (first citing Ridgeway v. Spokeo, Inc., 26 No. 2:23-CV-01660-MEMF-AS, 2023 WL 6795277, at *5 (C.D. Cal. Oct. 11, 2023) (relying on 27 TransUnion to find lack of injury and standing without addressing legal differences between 1 Ancestry.com Operations Inc., No. 3:22-CV-140 JD, 2023 WL 2631387, at *5 (N.D. Ind. Mar. 24, 2 2023) (relying on TransUnion for similar proposition, with similar lack of distinction between 3 claims, and asserting without citations that misappropriation “necessarily requires” viewership); 4 and then citing Verde v. Confi-Chek, Inc., No. 21 C 50092, 2021 WL 4264674, at *4 (N.D. Ill. 5 Sept. 20, 2021) (similar, and noting that another court in that district recently came out differently 6 on the standing analysis in a similar case). 7 Spokeo also argues that Williams does not have standing because his profile does not use 8 or name or identity, see Oppo. at 9, but there is sufficient evidence in the record to suggest that the 9 profile is of Williams and that both he and his father recognized it as referring to Williams’s 10 identity, see Deposition of William Williams V (“Williams Depo.”) [Dkt. No. 158-1] 28:18–29:21 11 (recognizing address); Declaration of William Williams (“Williams Decl.”) [Dkt. No. 159] 12 (explaining the format of his name in the teaser profile); [Dkt No. 138-19] 28:9–29:8 (plaintiff 13 Williams’ father recognizing address), 77:3-78:20 (recognizing the photo as his son and the name 14 as his son’s combined with his father’s). True, plaintiffs’ counsel somehow mistakenly identified 15 their own plaintiff, but that goes to attorney competency and not to standing. For the same reason, 16 Spokeo’s motion to strike Williams’ declaration as a sham, [Dkt. No. 168], is DENIED. His 17 declaration that he recognizes himself in the teaser profile does not contradict his previous sworn 18 testimony; his explanations about the roman numerals in his and his association with the addresses 19 are consistent across testimonies. See Williams Decl. The validity of these explanations can be 20 addressed at summary judgment or at trial; whether the teaser profile sufficiently identifies him is 21 a question of law for summary judgment. See infra Part III.D.1. 22 Finally, the plaintiffs have standing to pursue injunctive relief. See Oppo. 10–11; Fed. R. 23 Civ. Proc. 23(b)(2). The plaintiffs’ theory of the case is, in part, that Spokeo continues to unjustly 24 profit from publishing teaser profile with their names and likenesses and without consent, see, e.g., 25 Mot. 22:13–20; because this harm is ongoing, the plaintiffs show “continuing, present adverse 26 effects.” Id. at 10 (quoting Khasin v. R. C. Bigelow, Inc., No. 12-CV-02204-WHO, 2016 WL 27 1213767, at *4 (N.D. Cal. Mar. 29, 2016)); see Bates, 511 F.3d at 985 (requiring plaintiffs to 1 of future harm in a similar way). Additionally, the current record suggests that opting out does not 2 necessarily end the harm. For example, Spokeo co-founder and Chief Technology Officer, Mike 3 Daly, explained that opting out is not perfect and does not necessarily catch all information, given 4 how their data flow and systems operate. See Daly Depo. 202:8–209:25; see also Declaration of 5 Mike Daly (“Daly Decl.”) [Dkt. No. 141-6] ¶ 36 (describing opt out procedure). It also does not 6 account for whether individuals consented to use before information is published. Spokeo’s 7 citation to Mendia v. Garcia, 768 F.3d 1009, 1013 n.1 (9th Cir. 2014), where the plaintiff was 8 granted release from prison but chose to stay—to avoid potential immigration deportation upon 9 release—and endure the ongoing alleged harm, is different from the plaintiffs’ cases, where the 10 record shows that the harm may continue regardless of plaintiffs’ actions. 11 Accordingly, the plaintiffs have standing for all of their claims. 12 B. Rule 23(a) 13 Rule 23(a) requires that plaintiffs show numerosity, commonality, typicality, and 14 adequacy. Fed. R. Civ. Proc. 23(a). Spokeo challenges adequacy but not numerosity or typicality, 15 and it combines its challenge to commonality with its arguments under Rule 23(b)(3) about 16 predominance and superiority. See generally Oppo. Accordingly, I address the 23(a) factors in 17 this section, except for commonality which I address later. 18 First, the class here “is so numerous that joinder of all members is impracticable.” Fed. R. 19 Civ. Proc. 23(a)(1). “[C]ourts within the Ninth Circuit generally agree that numerosity is satisfied 20 if the class includes forty or more members.” Hilario v. Allstate Ins. Co., 642 F. Supp. 3d 1048, 21 1059 (N.D. Cal. 2022), aff’d, No. 23-15264, 2024 WL 615567 (9th Cir. Feb. 14, 2024) (citations 22 omitted). The parties argue over how many people are in each class and disagree about the 23 accuracy of the expert reports about this number. See, e.g., Naaman Mot.; Naaman Oppo. 24 However, the plaintiffs show and Spokeo does not contest that each proposed class has many 25 thousands of members. The numerosity requirement is met. 26 Second, the plaintiffs have shown that their “claims or defenses . . . are typical of the 27 claims or defenses of the class.” A. B. v. Hawai‘i State Dep’t of Educ., 30 F.4th 828, 839 (9th Cir. 1 profiles with individuals’ names and home addresses, without their consent, in violation of 2 statutory rights of publicity and common law misappropriation theories. All class members have 3 the “same or similar injury,” id. (citation omitted)—violation of their statutory and common law 4 rights, as discussed in the standing section and the Prior Order. The lawsuit as a whole is also 5 “based on conduct which is not unique to the named plaintiffs” but rather affected all individuals 6 nationally, id. (citation omitted)—publication of teaser profiles without consent for commercial 7 gain. And each class member’s injury resulted from the “same course of conduct”—this 8 nonconsensual publication and resulting harm. Id. (citation omitted). The typicality requirement 9 is met. 10 Third, though I take Spokeo’s point, plaintiffs and their counsel are adequate. To meet the 11 Rule 23(a)(4) requirement, “the plaintiff must show that (1) the named plaintiff and her counsel do 12 not have conflicts of interests with other class members,” and that (2) the named plaintiff and 13 plaintiffs’ counsel “will prosecute the action vigorously on behalf of the class, which includes a 14 showing that class counsel is competent and qualified.” Hilario, 642 F. Supp. 3d at 1062 (citation 15 omitted). The named plaintiffs here are adequate because they are typical and because their claims 16 are identical to those of the other class members. See id. (drawing similar conclusion). Spokeo 17 asserts that the named plaintiffs are conflicted because they are pursuing the statutory minimum in 18 penalties rather than “actual damages or the full statutory damages that [unknown class members] 19 could recover.” Oppo. 30:1–19 (citing Sanchez v. Wal Mart Stores, Inc., No. Civ. 2:06-CV- 20 02573-JAM-KJM, 2009 WL 1514435, at *3 (E.D. Cal. May 28, 2009), which found the plaintiff 21 was inadequate in part because her counsel chose to pursue only “economic injury” rather than the 22 personal injury claims on behalf of the class). But from the briefing and record at this stage, it 23 seems that the vast majority of the members of all classes would only be entitled to the statutory 24 minimum. Even for individuals who incurred actual damages, there is no evidence thus far that 25 the relatively substantial statutory minimums—$750 for California and $2500 for Ohio, Ohio Rev. 26 Code Ann. § 2741.07—are less than the amount they would be entitled to in actual damages. The 27 few potential class members who incurred damages in higher amounts can always opt out of the 1 To determine whether class counsel is adequate, I look to: “(i) the work counsel has done 2 in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling 3 class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s 4 knowledge of the applicable law; and (iv) the resources that counsel will commit to representing 5 the class.” Fed. R. Civ. Proc. 23(g)(1)(A). Class counsel have dedicated a substantial amount of 6 time and resources to the present case as evident from the docket, and they intend to continue to 7 do so. See Mot. 15:23–16:2. In addition, they have substantial experience litigating consumer 8 class actions, including other privacy class actions. Declaration of Ben Osborn (“Osborn Decl.”) 9 [Dkt. No. 93] ¶¶ 15, 19–20; Declaration of Michael Ram (“Ram. Decl.”) [Dkt. No. 95] ¶¶ 3–8. 10 They have no conflicts of interest with any class members, and they are competent and qualified, 11 despite initial issues identifying their plaintiffs. Contrary to Spokeo’s assertions, Oppo. 29:13–28, 12 filing amended complaints or having experts challenged by opposing counsel are not reasons to 13 find counsel inadequate. They meet the Rule 23 standard. 14 C. Rule 23(b)(3) 15 Spokeo challenges four requirements under Rules 23(a) and 23(b)(3): commonality, 16 predominance, superiority, and adequacy. Oppo. 14–25. It makes the same arguments about the 17 first three requirements—asserting that if that there are no common contentions or questions under 18 the commonality requirement of Rule 23(a), then the plaintiffs cannot meet the commonality or 19 superiority requirements of Rule 23(b)(3)—so I address these arguments together. Spokeo does 20 not challenge numerosity, though it does challenge the expert and report related to this 21 calculations. See Oppo. 14–26. 22 1. Commonality and Predominance 23 Courts in this district have addressed commonality and predominance in the same analysis. 24 See, e.g., Nolen v. PeopleConnect, Inc., No. 20-CV-09203-EMC, 2023 WL 9423286, at *8–23 25 (N.D. Cal. Dec. 14, 2023). 26 “[T]he predominance requirement” of Rule 23(b)(3) requires that “questions of law or fact 27 common to class members predominate over any questions affecting only individual members.” 1 (quoting Fed. R. Civ. Proc. 23(b)(3)). “This requirement presupposes satisfaction of the 2 commonality requirement of FRCP 23(a)(2), which itself tests ‘the capacity of a classwide 3 proceeding to generate common answers apt to drive the resolution of the litigation.’” Id. (quoting 4 Alcantar v. Hobart Serv., 800 F.3d 1047, 1052 (9th Cir. 2015)). “But the predominance inquiry 5 goes further and ‘asks whether the common, aggregation-enabling, issues in the case are more 6 prevalent or important than the non-common, aggregation-defeating, individual issues.’” Id. 7 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)). 8 “The commonality requirement of Rule 23(a)(2) requires plaintiffs seeking class 9 certification to show that their claims ‘depend upon a common contention’ that ‘is capable of 10 classwide resolution—which means that determination of its truth or falsity will resolve an issue 11 that is central to the validity of each one of the claims in one stroke.’” A.B., 30 F.4th at 839 12 (quoting Wal-Mart, 564 U.S. at 350). “In determining whether the ‘common question’ 13 prerequisite is met, a district court is limited to resolving whether the evidence establishes that a 14 common question is capable of class-wide resolution, not whether the evidence in fact establishes 15 that plaintiffs would win at trial. While such an analysis may ‘entail some overlap with the merits 16 of the plaintiff’s underlying claim,’ the ‘[m]erits questions may be considered [only] to the extent [ 17 ] that they are relevant to determining whether the Rule 23 prerequisites for class certification are 18 satisfied.’” Olean, 31 F.4th at 666-67 (first quoting Wal-Mart, 564 U.S. at 351; then quoting 19 Amgen, 568 U.S. at 466; and then citing Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 20 (9th Cir. 2011)). 21 “In order for the plaintiffs to carry their burden of proving that a common question 22 predominates, they must show that the common question relates to a central issue in the plaintiffs’ 23 claim.” Id. at 665 (citing Wal-Mart, 564 U.S. at 349-50). “Therefore, ‘[c]onsidering whether 24 “questions of law or fact common to class members predominate” begins, of course, with the 25 elements of the underlying cause of action.’” Id. (quoting Erica P. John Fund, Inc. v. Halliburton 26 Co., 563 U.S. 804, 809 (2011)). 27 The plaintiffs identify several central questions of law and fact that they say will be 1 liability,” which seems to include whether publishing a person’s name and home address 2 constitute appropriation and whether the plaintiffs consented, Mot. 5:18–6:20; “[e]ntitlement to 3 damages”; id. 6–8; “[e]ntitlement to injunctive relief,” id. 8; whether a profile must be viewed for 4 each claim to lie, id. 9–10; and how and whether statutes of limitations apply, id. 10–11. I address 5 these below. 6 Starting with the causes of action and their elements, see Olean, 31 F.4th at 665, the 7 underlying claims are for violations of the California and Ohio right of publicity statutes, Cal. Civ. 8 Code § 3344; Ohio Rev. Code Ann. § 2741.02; common law torts of misappropriation of name or 9 likeness in California and in Ohio; and violations of California’s Unfair Competition Law 10 (“UCL”). SAC ¶¶ 180–92, 205–22. The elements of the California right of publicity cause of 11 action are “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff's 12 name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) 13 resulting injury.” Maloney v. T3Media, Inc., 853 F.3d 1004, 1008 n.2 (9th Cir. 2017) (quoting 14 Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1918 (1996)); see also Ohio Rev. Code Ann. § 2741.02 15 (requiring similar elements). In addition to those elements, liability under California Civil Code 16 section 3344 also requires “knowing use of the plaintiff’s name, photograph or likeness for 17 purposes of advertising or solicitation or purchases” as well as a “‘direct’ connection . . . between 18 the use and the commercial purpose.” Maloney, 853 F.3d at 1008 n.2 (quoting Fleet, 50 Cal. App. 19 4th at 1918). Finally, a UCL claim may be “derivative of [a plaintiff’s] publicity-right claims” 20 where, like here, “it invokes alleged publicity-right violations as its basis.” Id. 21 Though the plaintiffs frame this overbroadly as “Spokeo’s liability,” they are correct that 22 use and appropriation of a class member’s identity are common questions of law and fact, based 23 on this record. That is because the evidence suggests that for each potential class member, Spokeo 24 used the same common process to collect data from vendors, associate it with PIDs, and publish it 25 on its website. See Daly Depo. 21:12–24:17, 133:25–134:1, 156:3–161:11; Declaration of David 26 Alfaro (“Alfaro Decl.”) [Dkt. No. 141-7] 10–19; see also Kellman, 599 F. Supp. 3d at 895 (“As 27 the plaintiffs allege it, Spokeo’s business model depends on using the names, information, and 1 features at least a name and home address—another common fact. See Daly Depo. 60:1–15. The 2 resulting common issue of law is whether using and publishing this information without consent is 3 sufficient to constitute use or appropriation of identity under California, Ohio, or common 4 law. Cf. Oppo. 15:21–18:23. Spokeo argues that individualized inquiries will be necessary to 5 ascertain whether any particular class member is identifiable based on this information, but 6 because the evidence shows—and the class definition requires—that every class member’s name 7 and address was published, the common inquiry is whether name and address are enough to make 8 someone identifiable and thereby violate the law. This common inquiry is the central legal 9 question in this case. 10 Additionally, based on the plaintiffs’ theory of the case and class definitions, the inquiry 11 that determines class membership asks whether the class member’s name and address match the 12 teaser profile’s name and address. That can be established via affidavit, which also addresses 13 Spokeo’s concern that some teaser profiles have inaccurate, fake, or nonresidential addresses. See, 14 e.g., Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1132 (9th Cir. 2017) (noting that a consumer 15 may present an affidavit “in a claims administration process after a liability determination has 16 already been made” to determine class membership and confirm liability as to that individual); see 17 also Nolen, 2023 WL 9423286, at *16–17 (citing Briseno and explaining that plaintiffs can self- 18 identify post-certification, noting that the defendant could move for decertification if necessary). 19 As for profiles that have a class member’s former address or previously used name or alias (such 20 as a maiden name), this too presents a common question of law—whether the name and address 21 must be current, or whether it is sufficient under the relevant laws that the address is merely 22 associated with the class member. Notably, Judge Chen recently conditionally certified a class 23 asserting essentially identical causes of action against a very similar defendant, and in doing so he 24 emphasized the importance of the defendants including someone’s name as a “critical” reason for 25 why the other information (there, photographs) made the person identifiable. See Nolen, 2023 WL 26 9423286, at *11. Here, the question is whether that name combined with an address is enough. 27 Spokeo cites for support Davis v. Electronic Arts Inc. (“Davis II”), No. 10-CV-03328-RS, 1 certification to NFL players alleging that their identities were used as avatars in video games. But 2 Davis does not help Spokeo because there, each avatar had to be examined individually to 3 determine whether it identified any particular individual, see id., whereas here the theory of the 4 case is that posting someone’s name and address is enough to identify them. In other words, in 5 Davis identifiability turned on the individualized inquiry of whether a video game avatar looked 6 like a class member. Here, identifiability turns on the legal question of whether name and 7 residence are sufficient to make someone identifiable under the law. 8 That said, because of the plaintiffs’ theory of the case, their class definitions must be 9 amended slightly. See Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th Cir. 2013) 10 (“Rule 23 provides district courts with broad authority at various stages in the litigation to revisit 11 class certification determinations and to redefine or decertify classes as appropriate.”); Hilario v. 12 Allstate Ins. Co., No. 23-15264, 2024 WL 615567, at *1 (9th Cir. Feb. 14, 2024) (unpublished) 13 (citing Wang with approval and holding that “[t]he district court did not abuse its discretion in 14 redefining the certified class”). The definitions currently include relevant individuals who have a 15 “teaser profile [that] includes a name and home address.” See Mot. i–ii. These definitions are 16 now each amended to include individuals with a teaser profile that “includes the individual’s name 17 and home address.” This clarifies that the address must be the class member’s address—it cannot 18 be any home address. As discussed, though, it will be up to the parties at summary judgment to 19 determine whether a prior address is sufficient for liability.4 20 The consent element also meets the commonality requirement. First, whether Spokeo 21 received “prior consent” to use plaintiffs’ identities, as required by the California and Ohio 22 statutes, is subject to common proof, including whether there were procedures in place to obtain 23 and confirm consent before publication. Spokeo says that the class members can use the opt-out 24 feature on their websites, but asking to remove information after publication does not address 25 whether plaintiffs consented prior to publication. Second, whether the plaintiffs subsequently 26

27 4 There appears to be a typographical error in the plaintiffs’ original motion that includes “All 1 consented to use of their identities—an element of the common law claims—is also likely subject 2 to common proof based on whether there were effective procedures available. For example, the 3 plaintiffs note that Spokeo’s sole procedure for obtaining consent occurs when users register for 4 the website; whether there even is a process available for nonusers is “common question is 5 capable of class-wide resolution” even if the ultimate answer does not support the plaintiffs’ 6 theory of the case. Olean, 31 F.4th at 666-67. Additionally, whether the availability of the opt- 7 out process is sufficient to show implied consent is also a common question of law. Finally, 8 whether a plaintiff ever consented to arbitration by signing up for Spokeo or agreeing to its terms 9 may ultimately be an individualized inquiry, but it does not defeat the commonality of the consent 10 element as a whole; indeed, it is possible that this question of fact could be addressed through 11 common evidence if, for example, Spokeo has a list of known users or individuals who have 12 agreed to arbitration. 13 And contrary to Spokeo’s argument, the injury element also presents common questions of 14 law and fact. Whether the nonconsensual use of someone’s identity for commercial purposes is a 15 legally sufficient injury is a common question of law, central to the claim of each plaintiff in the 16 Published classes. See, e.g., See Sessa v. Ancestry.com, 561 F. Supp. 3d 1008, 1022 (2021) (“The 17 use of an individual’s likeness for commercial purposes . . . establishes common law injury for 18 right of publicity claims as long as the individual is recognizable.”). And whether the combination 19 of publication and at least one view of someone’s information is a legally sufficient injury is a 20 common question of law, central to the claim of each member of the Viewed Prior to Purchase 21 classes. If these central questions are decided in the plaintiffs’ favor, there will be no issues of 22 individualized proof. And even if the questions are decided in Spokeo’s favor, whether a claimant 23 was injured—here, whether they experienced the requisite mental or emotional harm for a privacy 24 claim, see Kellman, 599 F. Supp. 3d at 889—is an underlying issue in every class action. Proof of 25 injury can be provided by a sworn affidavit, a receipt, or something else.5 Cf. Briseno, 844 F.3d at 26 5 This also addresses Spokeo’s arguments that only individualized inquiries can determine if each 27 individual had a teaser profile. An individual cannot be injured without a teaser profile; if 1 1131–32 (noting that class members may self-identify post certification). Just because a claimant 2 must show she was injured to recover does not mean a class cannot be certified.6 Spokeo points to 3 no law that provides otherwise. Common questions of law therefore predominate the injury 4 analysis. 5 Next, Spokeo challenges calculation of damages, but in the same breath concedes that the 6 plaintiffs are only seeking to certify classes based on statutory, not actual, damages. See Oppo. 7 26–27. Statutory damages are calculated as prescribed by the statutes. What the statute provides 8 is a common question of law, so common questions predominate for the damages analysis, too. 9 Spokeo also argues that some class members will be subject to affirmative defenses. See 10 id. 23–25. I already addressed its implied consent argument. With respect to its assertion that 11 some claimants may be public figures subject to the First Amendment newsworthiness exception, 12 it is true that this legal question would not apply class wide and would be subject to an 13 individualized inquiry. But “so long as one or more central issues in the action are common to the 14 class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) 15 even though other important matters will have to be tried separately, such as . . . some affirmative 16 defenses peculiar to some individual class members.” Olean, 31 F.4th at 668 (citation omitted). 17 As discussed above, there are many central issues that are common to the class. It is clear that 18 they predominate over this single affirmative defense, particularly without evidence of how much 19 of the class might be subject to the defense. Accordingly, this does not preclude certification. See 20 id. at 668–69. 21 Spokeo’s remaining arguments about commonality are not persuasive. Whether each 22 teaser profile is a real person might go to the total number of class members, but it is not clear how 23 it would affect commonality for class members, who each have a teaser profile by definition of the 24 class. Dead class members, Oppo. 21–22, will not file claims; Spokeo does not point to evidence 25 suggesting any likelihood of fraudulent claims being filed on behalf of the deceased. Individuals 26 who used Spokeo or consented to arbitration, id. 19–21, are not included in the class definition, 27 1 see Nolen, 2023 WL 9423286, at *23 (same). They can also be screened out through common 2 evidence within Spokeo’s control. 3 I am also unpersuaded by Spokeo’s arguments that class notification is implausible. See 4 Oppo. 26. As discussed below, plaintiffs’ expert proposes notification by email, by publication in 5 the media, and by class website. See infra, Part II.B. For the reasons explained below, this is 6 sufficient to notify the California and Ohio classes. 7 For those reasons, the plaintiffs meet the commonality requirement of Rule 23(a) and the 8 predominance requirement of Rule 23(b)(3). 9 D. Superiority 10 The plaintiffs must also show that “a class action is superior to other available methods for 11 fairly and efficiently adjudicating the controversy.” Fed. R. Civ. Proc. 23(b)(3). The Federal 12 Rules provide four considerations for courts assessing superiority: 13 (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; 14 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 15 (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 16 (D) the likely difficulties in managing a class action. 17 Fed. R. Civ. Proc. 23(b)(3)(A)-(D). 18 Each consideration favors finding that the superiority requirement is met. First, the class 19 members’ interests in pursuing and controlling their own litigation are lessened here, where the 20 questions of law and fact are common and must be addressed whether the case is brought by an 21 individual or a class. See id. 23(b)(3)(A). No individual plaintiff would have a greater or lesser 22 interest in determining, for example, whether her name and home address are sufficient to make 23 her identifiable under right to publicity law. Though some individual plaintiffs may arguably have 24 interests in pursuing more than the statutory minimum in damages, as discussed this is likely a 25 very small number of possible class members, and they will be able to opt of the class action if 26 they wish. 27 Additionally, there appears to be at least one prior case where plaintiffs are pursuing 1 similar claims against Spokeo, but that case brought suit only under Alabama right to publicity 2 law and was recently dismissed. Ridgeway v. Spokeo, Inc., No. 2:23-CV-01660-MEM-FAS, 2023 3 WL 6795277 (C.D. Cal. Oct. 11, 2023). The plaintiffs also point to one parallel action filed in 4 state court, see Boyd v. Spokeo, Inc., 21-cv-13644 (Sup. Ct. Cal. Apr. 9, 2021), and assert that they 5 are in contact with counsel for that case, noting that case is not as “procedurally advanced” as this 6 one. See Mot. 20:17–21. Accordingly, the extent and nature of litigation concerning potential 7 class members is minimal. See Fed. R. Civ. Proc. 23(b)(3)(B). 8 Litigation in this forum is highly desirable given that Spokeo is located here, its witnesses 9 and documents are here, and the underlying alleged violations mostly took place here. See id. 10 23(b)(3)(C). And finally, this case does not clearly present manageability issues above and 11 beyond those typically associated with class actions. See id. 23(b)(3)(D). Accordingly, the 12 superiority requirement is met. 13 Spokeo asserts in its motion that it contests superiority, but it does not discuss the Rule 14 23(b)(3) considerations. Instead, it seems to argue that the superiority element is not met because 15 the plaintiffs cannot use common proof to show who is a Spokeo user and therefore excluded from 16 the class. See Oppo. 21:4–5 (mentioning superiority in the second case in a “see, e.g.,” string 17 cite). This is the same argument I rejected above when analyzing the commonality and 18 predominance requirements, and I reject it again here for the same reasons. 19 Spokeo also cites superiority as a reason that its Due Process rights would be violated, 20 arguing again that the damages calculations and amounts for the nationwide classes are immense. 21 See id. 3:18–20, 27:20–28:4. Plaintiffs no longer seek to certify nationwide classes, so this 22 argument is moot. 23 Accordingly, the superiority requirement is met. 24 E. Rule 23(b)(2) 25 Spokeo argues that the plaintiffs lack standing to seek an injunction and that their Rule 26 23(b)(2) classes lack commonality, ascertainability,7 and superiority, see Oppo. 28:6–15, all of 27 1 which I addressed and rejected above. Its only new argument is that an injunction would be 2 improper on behalf of a nationwide class because different states offer different forms of relief, so 3 class members would be (or would not be, as provided by some states) entitled to different 4 injunctions. See id. 28:15–25. As plaintiffs withdrew the request for the nationwide classes, this 5 argument is moot. 6 As Judge Chen explained in a similar right of publicity case, the “damages class is the 7 driver of this case, and if the damages class should be certified, then necessarily at Rule 23(b)(2) 8 should be certified as well.” Nolen, 2023 WL 9423286, at *8 (citing Fed. R. Civ. Proc. 23(b)(2)). 9 That is because Rule 23(b)(2) provides that a class may be certified under that rule if the Rule 10 23(a) requirements are met and “the party opposing the class has acted or refused to act on 11 grounds that apply generally to the class, so that final injunctive relief or corresponding 12 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. Proc. 23(b)(2). 13 Those requirements are met here; the Rule 23(a) factors favor certification, and the plaintiffs 14 presented sufficient evidence that Spokeo acted in a way that applies generally to the California 15 and Ohio classes through its common policy and process for gathering consumer data and 16 publishing it via teaser profiles on its website. I will therefore also grant certification of the 17 California and Ohio classes under 23(b)(2), with the following amendment: “such teaser profile 18 includes a name and home address” shall be amended to read “such teaser profile includes the 19 individual’s name and home address.” See Wang, 737 F.3d at 546. 20 Accordingly, the motion to certify under Rule 23(b)(2) is granted. 21 F. MOTIONS TO DISQUALIFY AND STRIKE 22 A. Spokeo’s Motion to Exclude Declarations and Testimony of Michael Naaman and 23 Spokeo’s Motion to Strike Naaman’s New Reply Declaration 24 Spokeo moves to exclude Naaman’s declaration and testimony, arguing that his class size 25 calculations are unreliable and that his method to calculate damages is fundamentally flawed.8 See 26 Naaman Mot. 11–21; Declaration of Michael Naaman (“Naaman Decl.”) [Dkt. No. 91-15]. 27 1 Most of Spokeo’s arguments miss the mark because Spokeo frames them as taking issue 2 with the calculations of class size, but it does not challenge numerosity. For example, Spokeo 3 argues that Naaman failed to exclude Spokeo users, dead people, people who assigned their rights, 4 duplicated profiles, profiles with inaccurate home addresses, and profiles that refer to people who 5 are not real from his class size calculations. See Naaman Mot. 7–9, 15–18. But even if Naaman 6 should have excluded each of these—which I do not find at this point—the classes clearly would 7 still meet the numerosity requirements given the data upon which he relied and the evidence of 8 Spokeo’s business model, which is apparently designed to have a teaser profile for every 9 American adult. See, e.g., Daly Depo. 47:12–48:25. Spokeo also repeats arguments that it made 10 in its opposition to class certification, asserting that Naaman did not verify that each teaser profile 11 corresponded with a real individual and residence. See Naaman Mot. 11–14. Again, these are 12 framed as challenges to how Naaman calculated class size, see id.; Spokeo does not challenge 13 numerosity, so the argument is superfluous. 14 It seems that Spokeo is trying to use Naaman’s declaration as support for its argument that 15 the plaintiffs’ claims are not subject to common proof, particularly with respect to the arguments 16 about whether each profile represents a real person and whether each residence is accurate. But it 17 is not clear why Naaman should be the source of proof of commonality, as his declaration and 18 analyses were submitted to show numerosity, see Naaman Decl. ¶¶ 1–2, (which is why the 19 declaration is not irrelevant, see Oppo. 19:11–20:22), and potentially for superiority, though it is 20 not clear that superiority is really an issue, supra Part III.D.2. And importantly, I rejected 21 Spokeo’s arguments about commonality above. Supra Part III.D.1. I am unconvinced by its 22 parallel arguments here. 23 Spokeo also seeks to exclude Naaman’s declaration and testimony about damages 24 calculations, which is an element of class certification that Spokeo actually challenges. See 25 Naaman Mot. 20:23–22:1; Oppo. 13:14–17. But the argument is unpersuasive. Spokeo asserts 26 that Naaman does not provide a method for calculating damages and instead simply multiplies the 27 number of class members by the minimum statutory penalty sought by the plaintiffs for the 1 plaintiffs seek the statutory minimum for damages, and this would help the trier of fact. See Fed. 2 R. Evid. 702. As discussed, supra Part III.D.1, entitlement to damages presents a common 3 question of law. This is not a reason to exclude Naaman’s declaration. 4 For those reasons, then, the motion to exclude Naaman’s declaration and testimony is 5 DENIED. 6 In reply, the plaintiffs submitted a supplemental declaration from Naaman; Spokeo moved 7 to strike it as improperly submitting new evidence. See Strike Mot. Because I do not rely on the 8 newly submitted declaration in my class certification analysis and findings, I do not need to 9 address the merits of this motion. The motion is DENIED as moot on this point.9 10 G. Spokeo’s Motion to Exclude Declarations and Testimony of Steven Weisbrot 11 Spokeo also moves to exclude the declaration and testimony from Weisbrot about class 12 notification, asserting that it is irrelevant and that its methodology is unreliable. See Weisbrot 13 Mot. Weisbrot’s proposed notification method involves sending emails to potential class members 14 using the email addresses posted on Spokeo’s teaser profiles, by publication in the media, and by 15 website. Declaration of Steven Weisbrot (“Weisbrot Decl.”) [Dkt. No. 96] ¶¶ 13–14, 18–19, 26, 16 30–31. Though his proposed method provides notice to the nationwide classes, he explained how 17 he would and could use the same method on a narrower target audience if smaller classes were 18 certified, such as statewide classes. See Transcript of Steven Weisbrot (“Weisbrot Tr.”) [Dkt. No. 19 153-110] 62:3–25. 20 Spokeo’s argument about relevance is unpersuasive. Spokeo contends that Weisbrot’s 21

22 9 I also denied the other argument in this motion. Supra Part I.A.

23 10 Plaintiffs did a terrible job of citing and filing this document. Their opposition merely cites the transcript as “Exhibit A.” There are no exhibits attached to the opposition. See [Dkt. No. 155]. 24 Because the opposition is labeled as “redacted,” I searched for the unredacted version on the docket, thinking it might have the missing Exhibit A. There is no unredacted version to be found. 25 I then looked at Weisbrot’s declaration—but Exhibit A to the declaration is just a firm CV for Angeion Group. [Dkt. No. 96] Ex. A. Eventually and after serious digging throughout the docket, 26 I turned to [Dkt. No. 156], which is labeled “Declaration of Raina C. Borrelli in Support of 155 Opposition/Response to Motion” and includes attachments labeled as “Exhibit 1, Exhibit 2”—in 27 other words, there is no clear labeling indicating the connection to the Weisbrot declaration. Then 1 notice plan will provide notice to all potential class members in the Purchase classes, and that this 2 is overbroad because it is not directed only to members of the Viewed Prior to Purchase classes, 3 for which notice is mandatory under Rule 23(b)(3). But the Federal Rules permit notice to 4 23(b)(2) classes like the Purchase classes, see Fed. R. Civ. Proc. 23(c)(2)(A), and Spokeo offers 5 no reason why notice should not be provided to them. Instead, Spokeo’s argument that Weisbrot 6 does not offer a way to target solely Viewed Prior to Purchase members is merely another way to 7 argue that the plaintiffs are unable to identify their own class members from common evidence— 8 but I analyzed this assertion at length and rejected it above. And Spokeo’s argument about 9 plaintiffs self-identifying is bizarre; claimants do not have to know pre-filing which class they are 10 in, and because this information is solely within Spokeo’s control, it would be nearly impossible 11 for claimants to know without confirmation from Spokeo if they are members of the Viewed Prior 12 to Purchase classes in addition to solely the Purchase classes. And the plaintiffs may use the 13 claims administration process to determine which claimants belong in which classes, using 14 common evidence—in Spokeo’s possession, including about its subscriptions and users—to 15 determine class membership. See Chinitz v. Intero Real Est. Servs., No. 18-CV-05623-BLF, 2020 16 WL 7042871, at *3 (N.D. Cal. Dec. 1, 2020) (“[A]ny issue about identifying who is entitled to 17 recover is handled at the claims administration stage of the case.” (citing Briseno v. ConAgra 18 Foods, Inc., 844 F.3d 1121, 1132 (9th Cir. 2017))). 19 Spokeo’s argument about notice methodology also fails. It asserts that Weisbrot should 20 not rely on the email addresses that Spokeo has in its possession and includes for teaser profiles 21 because they might not be real or correspond to a real person. See Weisbrot Mot. 12, Weisbrot 22 Repl. 1, 4–7. First, Weisbrot’s methodology for removing junk, fake, or inaccurate emails, to the 23 extent possible, is reliable and relevant. See Weisbrot Decl. ¶¶ 13–17; City of Pomona, 750 F.3d 24 at 1043. Second, with respect to Spokeo’s assertion that its email address data is inherently 25 unreliable, and given the evidence about its use of data gathering and associating via personal 26 identifier labels to connect names with addresses and other information, it seems highly likely that 27 many of the email addresses are correct for many of the teaser profiles. Third, if a notice email is 1 does not fall into the class definition, they simply will not (and cannot) file a claim; it is not 2 dispositive for class notice to be overinclusive. See Chinitz, 2020 WL 7042871, at *3–4. And 3 fourth, even if an email bounces back, fails to reach its recipient, or is incorrectly assumed to 4 belong to a particular potential class member, Weisbrot presents two other ways of providing 5 notice. The fact that these methods notify members of the Purchase classes as well as the Viewed 6 Prior to Purchase classes is not a reason to find the method is unreliable. 7 For those reasons, the motion is DENIED. 8 B. Plaintiffs’ Motion to Exclude Declaration and Testimony of David Alfaro 9 Finally, the plaintiffs move to exclude Spokeo’s expert, David Alfaro. See Alfaro Mot. 10 They argue that Alfaro misrepresents evidence about Spokeo data vendors, is unqualified to opine 11 on class size or Naaman’s methodology, is not an expert on class notice and cannot opine on 12 Weisbrot’s methodology, and provides improper legal conclusions. See also Alfaro Decl. 13 The underlying basis for plaintiffs’ motion is that Alfaro’s declaration cannot be used to 14 discount the declarations from Naaman or Weisbrot. But as I explained, there are independent 15 reasons that I find Naaman’s and Weisbrot’s declarations reliable and so I denied Spokeo’s 16 motions to exclude them. For Naaman, Spokeo does not challenge numerosity; to the extent that 17 Alfaro challenges Naaman’s calculations of class size, I do not rely on those opinions because, as 18 explained, they are not relevant. Again, Naaman’s declaration is not the basis for the evidence of 19 or arguments about commonality; to the extent that Alfaro challenges it for these reasons, I do not 20 consider those challenges. And to the extent that Alfaro challenges the resulting damages 21 calculations—that are calculated by assuming each potential class member would receive the 22 statutory minimum—again I do not rely on Alfaro’s declaration for these arguments, because of 23 course this is the proper method for calculating damages here. As I do not rely on Alfaro’s 24 declarations in assessing Naaman’s declaration, and because that is the driving basis for which the 25 plaintiffs challenge Alfaro’s declaration, I do not need to address the plaintiffs’ challenges. Their 26 motion is DENIED as moot for these reasons. 27 Plaintiffs also challenge Alfaro’s critique of Weisbrot’s methodology, but again, I do not 1 entirely correct that not all email addresses are accurate, I have already explained why that critique 2 || does not affect the sufficiency of Weisbrot’s proposed notice plan. The plaintiffs’ challenge to 3 || Alfaro’s declaration is DENIED as moot for these reasons. 4 Finally, I decline to address the plaintiffs’ arguments about Alfaro’s methodology and 5 || qualifications at this stage. If they are still relevant at summary judgment, the plaintiffs may 6 || reraise their concerns then. 7 CONCLUSION 8 The plaintiffs’ motion for class certification is GRANTED for the California and Ohio 9 classes, with the above amendments to the class definitions. The motion for the nationwide 10 || classes is withdrawn. Spokeo’s motion to exclude Naaman’s declaration and testimony, to 11 exclude Weisbrot’s declaration and testimony, and to strike, are DENIED. The plaintiffs’ motion 12 || to exclude Alfaro’s declaration and testimony is DENIED as moot. 13 IT IS SO ORDERED. 14 |] Dated: May 29, 2024 .

5 ae H. Orrick | nited States District Judge 18 19 20 21 22 23 24 25 26 27 28