An Orrick team this week secured the dismissal of a class action against client Everalbum Inc., a San Francisco-based mobile app provider facing alleged violations of Illinois’ Right of Publicity Act (IRPA).
In a lawsuit filed earlier this year in the Northern District of Illinois, the plaintiff alleged that Everalbum’s app for iPhones and Androids – which allows users to save, edit and share photos with friends and family – violated the IRPA because it encouraged users to invite their contacts to download the app in exchange for free storage – and then included users’ full names, without their consent, in promotional text messages sent to users’ contacts.
Plaintiffs were seeking class wide statutory damages for their claims under the IRPA, which bars the “public use or holding out” of an individual’s identity without their consent for the purpose of selling or promoting a product or service. But U.S. District Judge Sara Ellis sided with one of our team’s key arguments, agreeing to dismiss the class action on the pleadings. Specifically, the judge backed our argument that because the app required the plaintiff to grant access to his contacts in order to send invitations and clearly disclosed that any invitations he sent would be sent by text message, the plaintiff could reasonably expect that his name would be included in the text messages he voluntarily chose to send.
“Because the Court finds that (plaintiff) consented to the use of his identity in text messages Everalbum sent to his contacts, negating a key element of his IRPA claim, the Court finds that (plaintiff’s) IRPA claim fails,” the judge wrote.
Orrick senior associate
Gregory Beaman represented Everalbum in the litigation.