A federal judge has tossed a Chicago lawyer’s class action lawsuit against online attorney directory Avvo, ruling Avvo’s lawyer listings are protected by the First Amendment, and don’t break an Illinois law which forbids the use of personal information, without consent, for profit.
On Sept. 12, U.S. District Judge Robert W. Gettleman sided with the Seattle-based Avvo Inc., and dismissed the legal action of named plaintiff John Vrdolyak, saying Avvo’s listings should not be considered “commercial speech,” like an advertisement for a specific product, brand or retailer. Rather, he said, the listings should be considered more akin to publications in which advertisements can be place, like newspapers or magazines, or professional directories, like the Yellow Pages.
“The court agrees with defendant that to hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field,” Gettleman wrote. “Defendant’s (Avvo’s) actions are more like those of Sports Illustrated than Jewel.”
The case landed in federal court in February, when Chicago attorney Moira Bernstein, through her lawyers, with Zimmerman Law Offices, of Chicago, filed a complaint. She alleged Avvo misappropriated her identity and those of other lawyers “for commercial purpose,” in violation of Illinois’ Right of Publicity Act, when it created and published listings for her and others in Illinois without their consent.
The complaint noted the information came from otherwise public records, such as bar admissions and other court and regulatory sources. The complaint also acknowledged Avvo doesn’t charge attorneys to be listed on their site.
However, Bernstein argued Avvo overstepped the law by creating “sponsored listings” – essentially, the opportunity for listed attorneys to pay to place their name, photo, contact information and “Avvo Rating” score on the pages listing competing attorneys who have not “sponsored” a listing. This, she argued, amounted to Avvo using her information without her consent to make money.
In May, in response to Avvo’s request to transfer the case from Chicago to courts in its home turf in the Pacific Northwest, the Zimmerman attorneys replaced Bernstein with Vrdolyak, as the lead plaintiff. According to court documents, Bernstein had “claimed” her profile, an act which required consenting to Avvo’s user agreement. That agreement included forum selection language requiring all disputes between Avvo and its users to be handled in Seattle’s federal court.
Vrdolyak had not consented to the user agreement terms, allowing the case to stay in Chicago, with Gettleman’s assent.
However, on Sept. 12, Gettleman said the lawsuit is a non-starter, because of the nature of what Avvo does.
The plaintiffs argued Avvo should be held liable in a similar fashion to supermarket chain Jewel, which federal courts found had violated the Illinois publicity law by publishing an ad in a commemorative issue of Sports Illustrated published to commemorate the induction of Chicago Bulls’ great Michael Jordan into the Basketball Hall of Fame.
In that case, Jewel had similarly attempted to argue its ad was not necessarily selling anything, and so should be protected by the First Amendment.
Judges, however, found the ad was “no less ‘commercial’ because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service.’”
The plaintiffs said this should mean Avvo’s “Sponsored Links” are actually “ads for each attorney’s ‘brand.’”
Judge Gettleman, however, said this argument misrepresents what Avvo does.
“The court views what defendant does as more akin to the yellow pages directory, which receives First Amendment protection, than the advertisement that Jewel placed in Jordan,” he said.
While the judge said the “Sponsored Listings” are “commercial speech,” they don’t negate the totality of what Avvo does.
“Jewel’s ad did not convert the entire commemorative issue into commercial speech,” said Gettleman. “Not do the Sponsored Listings turn the entire attorney directory into commercial speech.
“Consequently, the court concludes that defendant’s publications are fully protected by the First Amendment.”
Avvo was represented in the action by attorneys with the firms of Jenner & Block, of Chicago, and Davis Wright Tremaine, of Seattle.
Following the ruling, Avvo said the decision is in keeping with the outcome of a similar lawsuit recently settled in California. In that case, Avvo was able to use a California law to persuade the plaintiff to dismiss the case and pay Avvo's legal fees.
Avvo noted Illinois doesn't have a similar law on the books.
However, Avvo's Chief Legal Officer Josh King said the company is evaluating its options concerning any further actions in connection with the dismissal of the Illinois lawsuit.
“This is further validation that publishers like Avvo needn’t obtain the consent of their subjects prior to exercising their First Amendment rights,” said King in a prepared statement. “The purpose of a free and unfettered media is to provide transparency and openness. While we never felt like the principle was really at risk here, we’re pleased at the explicit recognition that our efforts to help people better understand lawyers and the legal profession is fully protected by the First Amendment.”