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Ninth Circuit:
Public Interest Privacy Suit Survives Anti-SLAPP Motion
Statutory Exemption Covers Challenge to Online Database Containing Professionals’ Personal Information
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a class action asserting privacy violations against a company offering a searchable business-to-business database containing information about the companies—and contact information for millions of individuals who work at the profiled entities—is statutorily exempted from an anti-SLAPP motion under Code of Civil Procedure §425.17(b) as the suit involves matters of public interest.
The court also rejected the company’s assertion that it qualifies as a “publication” under §427.17(d)—making the exemption in subsection (b) inapplicable—as the panel concluded that the database does not involve a form of expression making it akin to a literary, artistic or news publisher despite providing occasional, industry-specific updates.
Senior Circuit Judge Richard R. Clifton wrote the opinion affirming the denial by Senior District Court Judge Maxine M. Chesney of the Northern District of California of the company’s anti-SLAPP motion. Circuit Judge Milan D. Smith Jr. and Sixth U.S. District Circuit Court of Appeals Senior Circuit Judge Eugene E. Siler, sitting by designation, joined in the opinion.
Public Database
Appealing the denial was Dun & Bradstreet Holdings, Inc. (“D&B”), which operates the database D&B Hoovers. Due to the publication of the information on the database, anyone who searches the name of an individual who works at an included entity can access a profile containing that professional’s contact information, alongside messages informing the searcher that they may purchase a subscription to access additional material.
The profile is available regardless of whether the inquiry is conducted through a search engine or on the D&B Hoovers database website.
Plaintiff Odette R. Batis is a librarian for the Richmond Public Library, the professional contact information for which is included in the database and accessible during the free trial offered to all members of the public. On March 25, 2022, she filed a class action against D&B, alleging that the commercial use of her name, and the names of similarly situated professionals, violates California’s right of publicity and unfair competition laws.
According to Batis, D&B subscriptions cost more than $10,000.
In her complaint, Batis seeks injunctive relief, restitution, damages, and a declaration that D&B has infringed on state-law privacy rights.
Statutory Scheme
D&B filed a special motion to strike under §425.16, the anti-SLAPP statute, arguing that the claims arise from the company’s actions in furtherance of free speech protected by the First Amendment.
An exemption to the anti-SLAPP provisions is found in §425.17(b), which provides:
“Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:
“(1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision.
“(2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.
“(3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.”
Subd. (d), in turn, provides that subd. (b) does not exempt actions against publishers, editors, or reporters employed by periodicals or against the promotion of “dramatic, literary, musical, political, or artistic work.”
Publication Protection
D&B asserts that §425.17(d) precludes the application of the public interest exemption to the present action, arguing that the database should be considered both a “periodical” publication and a “literary work.” Clifton noted:
“[S]ection 425.17(d) evidently does not apply to all works that receive First Amendment protection. If it did, the public interest exemption would be read out of existence: any work that is allowed to invoke the anti SLAPP statute in the first place could subsequently invoke section 425.17(d) to preclude the public interest exemption’s application.”
He pointed to the “well-established canon of statutory interpretation” that words should be interpreted by the company they keep and said:
“Interpreting the term ‘literary’ from that perspective, all the other terms in subdivision (d)(2)—dramatic, musical, political, artistic—evoke some form of expression. Similarly, in terms of what constitutes a ‘periodical publication,’ the other examples—newspapers and magazines—involve the dissemination of works of expression, from opinion pieces to in-depth investigations.”
Looking to the D&B Hoovers database, he wrote:
“Under such an interpretation, a database of professional contact information used to facilitate commercial transactions does not come within the ambit of section 425.17(d)….The fact that the D&B Hoovers database also happens to contain some ‘industry news,’ the dissemination of which is not challenged in this case, is insufficient to render it a ‘literary work’ as a whole, especially when D&B has not put forward any evidence about whether the ‘industry-level information’ that it ‘provides’ consists of original works of reporting or articles compiled from external sources.”
Different From Class
D&B asserts that the exemption in §425.17(b) for public interest lawsuits is inapplicable in any case because Batis seeks “personal relief” different from the rest of the class. Unpersuaded, Clifton noted that “California courts are clear that plaintiffs can still invoke the public interest exemption even if their lawsuit seeks monetary relief.”
He explained:
“In assessing whether a putative class action falls under that exemption, the question is therefore whether the complaint pursues the same categories of relief for all class members. It matters not whether all class members are likely to ultimately establish entitlement to all forms of requested relief, as long as nothing in the complaint inherently precludes them from doing so.”
The jurist continued:
“Here, Batis has requested all relief on behalf of all members of the alleged class. For instance, while D&B notes that Batis seeks “[e]motional distress damages,” which it asserts “are highly individualized,” her complaint clearly seeks such damages on behalf of both “Plaintiff and the Class.” While D&B may find it implausible that the whole putative class experienced emotional distress, Batis’s complaint does not expressly preclude any subset of the class from seeking such relief.”
Other Criteria
As to the other statutory criteria for the application of the exemption, Clifton opined:
“California considers the right to control one’s name and likeness to be an important right affecting the public interest. Batis’s lawsuit, on the face of the complaint, seeks to enforce this deeply engrained right. That is sufficient to meet the second prong of the public interest exemption, whether or not the conduct she challenges constitutes a particularly egregious violation of that right.”
The final criteria of the public interest exemption considers whether private enforcement is necessary and disproportionately burdensome. The judge pointed out that the fact that no public entity has sought to enforce the right that the plaintiff asserts in the lawsuit has been found sufficient to satisfy this prong of the analysis, and that “[t[here is no indication that a public entity has brought a similar action against D&B.”
He added:
“As Batis may struggle to demonstrate the economic value of her name or likeness, she may recover only the minimum statutory damages of $750, which would not cover the cost of litigating this action.”
Procedural History
The appeal was argued before the panel on Jan. 8 and it affirmed in a Jan. 18 memorandum opinion, finding that the court’s 2023 decision in Martinez v. ZoomInfo Technologies, Inc. mandated the conclusion that the action is exempted from the anti-SLAPP statute under §425.17(b). The judges deciding Batis’s appeal were apparently unaware that on the same day they issued their opinion, the Ninth Circuit, by vote of a majority of nonrecused active judges, ordered Martinez to be reheard en banc.
However, the parties in that case reached a settlement, ending the proceedings. Because the opinion in Martinez had been vacated, the panel in Batis withdrew its initial opinion and reconsidered the matter, again affirming yesterday, this time in a published opinion.
The case is Batis v. Dun & Bradstreet Holdings, Inc., 23-15260.
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