Faced with the possibility the class action lawsuit could be transferred to a court more than 2,000 miles away in the Pacific Northwest, the lawyers suing online attorney directory Avvo have swapped in a different Chicago attorney, who also is the son of a once-powerful Chicago alderman, to replace the original named plaintiff, whose history with Avvo could have triggered provisions in Avvo’s user agreement, which could have kicked the case out of Chicago federal court and into a court in Avvo’s home turf in Seattle.
On May 17, attorney Thomas A. Zimmerman Jr., and other attorneys with the Zimmerman Law Offices, of Chicago, filed an amended complaint in Chicago federal court, substituting John Vrdolyak as the lead named plaintiff in the class action originally brought by plaintiff Moria Bernstein.
That case, filed in February in Cook County Circuit Court, had alleged Avvo profits from sharing her information and that of potentially thousands of other lawyers without their permission.
Bernstein operates the Law Offices of Moria Bernstein, a solo family and real estate law practice in Chicago.
Her complaint centered on Avvo’s business model, under which she alleged Avvo created a legal directory by scouring public records, such as bar admissions and other court and regulatory sources, “without any input, involvement or consent of the attorneys listed in the directory.”
While Avvo does not charge attorneys listed in the directory, it does offer them the opportunity to pay for “sponsored listings,” which place their name, photo, contact information and “Avvo Rating” score, on the profile page of a non-paying attorney practicing the same legal category in the same geographic area, essentially advertising their services on the pages of their direct competitors.
Bernstein said Avvo’s actions misappropriated her identity “for commercial purposes,” in violation of Illinois’ Right of Publicity Act. The penalty for violating the act is either actual damages and profits derived from the unauthorized use or $1,000 per violation, which ever is greater.
Bernstein’s lawsuit had requested an injunction forcing Avvo to stop profiting from the profiles of non-paying attorneys, as well as monetary relief to be determined at trial, plus punitive damages and attorney fees.
In response, Avvo removed the case to Chicago federal court. Then, in April, Avvo filed a motion asking the court to transfer the case to the U.S. District Court for the Western District of Washington, which has courthouses in Seattle and Tacoma. In that filing, Avvo had noted Bernstein, while not paying to sponsor or upgrade her Avvo profile, had “claimed” the profile – an act which required consenting to the Avvo user agreement. A provision in that agreement included forum selection language, which required all disputes between Avvo and its users to be handled in Seattle’s federal courts.
Bernstein’s attorneys then responded to Avvo’s request with a request of their own, to amend the lawsuit to drop Bernstein as the case’s lead plaintiff, and substitute Vrdolyak, a Chicago lawyer who had not claimed his Avvo profile nor consented to the Avvo user agreement.
U.S. District Judge Robert W. Gettleman signed off on the substitution, also on May 17, accepting the amended complaint.
Two days later, Avvo withdrew its motion to transfer the case.
John Vrdolyak is the son of Edward Vrdolyak, a powerful Chicago politician and lawyer, who had served as alderman and head of the Cook County Democratic Party, before clashing with former Chicago Mayor Harold Washington in the 1980s and switching allegiances to the Republican Party. After unsuccessfully seeking election as Cook County Circuit Clerk and mayor of Chicago, Vrdolyak returned to private law practice at the Vrdolyak Law Group, of Chicago, a firm in which his three sons, including John, also serve as partners.
According to his biography posted on the Vrdolyak firm’s website, John Vrdolyak lives in the suburbs of Chicago and previously worked at the firm now known as DLA Piper Rudnick.
Avvo is represented in the action by attorneys with the firms of Jenner & Block, of Chicago, and Davis Wright Tremaine, of Seattle.