Ancestry.com has again defeated a class action lawsuit accusing it of violating a state privacy law by publishing yearbook photos online.
Federal Magistrate Judge Jeffrey Cummings granted summary judgment to the website, ending a complaint from Joshua Braundmeier and Kevin Wallace, who alleged the connection of their names in old high school yearbooks to the company’s business model violated the Illinois Right of Publicity Act.
The ruling comes more than two years after U.S. District Judge Virginia Kendall granted summary judgment to plaintiff Sergio Bonilla. In that ruling, Kendall said: “Ancestry began hosting the 1995 (Omaha) Central High School Yearbook with Bonilla’s image” on June 27, 2019, but “Bonilla waited until Dec. 14, 2020, to file his complaint, over a year later and outside the statute of limitations.”
Cummings’ opinion references Bonilla as “former plaintiff,” then explains Ancestry lists two yearbooks including Braundmeier and 27 that mention Wallace. In challenging the current version of the complaint, Ancestry argued the men lacked standing because the only party that ever viewed, accessed or searched for their information was their own lawyers, undercutting claims of using names, images and likeness for purposes of advertising and solicitation.
Judge Cummings pushed back on that assertion, noting 2024 litigation against Seamless Contacts in the same federal circuit court — issued after brief submissions in the Ancestry suit — which showed courts in and outside the Northern District of Illinois “overwhelmingly concluded” a plaintiff did not need to allege third-party viewing of protected information to establish standing for publicity rights claims under IRPA.
However, he sided with Ancestry in determining there was no way for the plaintiffs to convince a reasonable jury that the business used the plaintiffs’ identities for its commercial purposes.
“Plaintiffs do not argue that their information was seen by or exposed to a substantial number of people,” Cummings wrote, but instead alleged Ancestry “held out” their identities.
Cummings again pointed to the decision in Hoffower v. Seamless Contacts, which held: “This court cannot endorse a reading of IRPA that permits a plaintiff to obtain relief based on her own attorney making a direct request for, and then obtaining, the plaintiff’s identifying information. And allowing a plaintiff to bring an IRPA claim without the defendant having actually shown or displayed the plaintiff’s identifying information would negate the statute’s requirement that a violation consists of the defendant's handling of that information, specifically the ‘use’ or ‘holding out’ of it.”
Since their only evidence was their own attorney’s online search, Cummings continued, these plaintiffs reach the same dead end as Hoffower. Although he noted the parties didn’t know of that ruling when filing their motions, Cummings said he nevertheless didn’t need to consider their other arguments, as “The language of the IRPA does not prohibit potential commercial use of their information.”
Because the main claim failed, Cummings said, the derivative unjust enrichment claim also fell short and he didn’t need to consider Ancestry’s challenge to the plaintiffs’ expert witness.
Ancestry did not respond to a request for comment.