Online background check providers, including Instant Checkmate, are in line to pay $10 million to settle class action claims alleging the companies violated privacy rights.
In an Aug. 30 filing in Chicago, attorneys Kevin Tucker and Kevin Abramowicz, of East End Trial Group, of Pittsburgh; joined by lawyers from Beaumont Costales, of Chicago; Edelson PC, of Chicago and San Francisco; and Bursor & Fisher, of New York; asked U.S. District Judge Manish Shah to approve the deal on behalf of 13 named plaintiffs suing Instant Checkmate, Truthfinder, Intelius, Control Group Media Company and PeopleConnect.
According to the motion, the common claims are the nonconsensual use of plaintiffs’ identities to advertise “people-search websites,” falling under right of publicity laws in Alabama, California, Illinois, Indiana, Nevada, Ohio and South Dakota. The terms of the deal call for creating seven state-specific funds collectively worth $10.1 million, with each fund’s amount being “based on a percentage of the available statutory damages under each state’s right of publicity law.”
Kevin Abramowicz
| East End Trial Group
Class members will have to submit claims for approval, showing a search of their name led to one of the defendant websites making a subscription sale. Presuming a claim rate of between 15 and 25 percent, approved claimants “are reasonably expected to receive settlement payment amounts as follows: Alabama, $577 to $960; California, $82 to $137; Illinois, $635 to $1,058; Indiana, $111 to $185; Nevada, $82 to $137; Ohio, $286 to $477; and South Dakota, $107 to $178.”
Different recovery is available to people whose identities are found in the defendants’ search engine optimization directories, but who are not linked to a subscription purchase. Those people would fall under a multistate injunction class, with the websites agreeing to stop displaying those claimants’ names on any page including a subscription offer. Those claimants, who do not have to submit for inclusion in the injunction class, also are not relinquishing their ability to pursue future monetary damages claims connected with allegations of nonconsensual identity use.
According to the motion, class counsel will seek up to 35% of the money remaining after administrative expenses and service awards, which also will be prorated based on where each class representative lives. The motion describes each service award as “marginally more” than what other class members would obtain and estimates each state class includes “hundreds or thousands of members.”
The underlying legal action stretches back to 2019. Now spanning several states, the first lawsuit originated in Cook County Circuit Court, where named plaintiffs Robert Fischer and Stephanie Lukis sued Instant Checkmate. Lukis also sued Whitepages.com on the same allegations.
The companies removed the complaint to federal court where they argued unsuccessfully for dismissal, including by contending their advertisements are protected free speech and that their background-check databases are works of literature.
The defendant websites operate in a similar manner: Users input a first and last name, and the site scours a database for matches. Previews of potential matches are shown with identifying information such as age and city of residence. Users then are invited to buy a “full report” on the individual or subscribe to a monthly service for access to multiple background reports.
In advertisements for their services, both websites feature Lukis’ and Fischer’s preview screens, though neither sought consent from the plaintiffs. The Whitepages.com ad includes Lukis’ first and last name, middle initial, age range, a phone number and a list of addresses. The Instant Checkmate ads included Lukis’ and Fischer’s first and last names, middle initials, exact ages, cities of residence, lists of former cities of residence and lists of possible relatives.