Spokeo owns and operates the website spokeo.com. It collects consumer and public data from various public sources and private vendors, associates that data with particular names, and publishes it online.
Using proprietary algorithms and systems, Spokeo “attempts to collect and aggregate and merge all that data into persons, person objects, which are then designated with a unique [personal identifier or ‘PID’] for that person object.” That aggregated data, associated with a particular PID, can then be searched for by users of the website. It is also used to populate “teaser profiles,” which can be viewed by the public without a subscription to the website. The teaser profiles advertise additional personal information about the subject of the profile, including about their family, court records, sex offender registration status, marital status, and more.
The Plaintiffs, Aviva Kellman, Jason Fry, Nicholas Newell, Susan Gledhill Stephens, and William Williams V, found a teaser profile associated with their personal information.
The Plaintiffs said that they did not consent to Spokeo’s use of their information on its website. They asserted that Spokeo’s publication of their personal information violated their statutory rights of publicity and common law rights regarding misappropriation of name and likeness. They sought class certification against Spokeo for four classes of people in California and Ohio.
Spokeo filed motions to exclude the declaration and testimony of Plaintiffs’ experts, Michael Naaman and Steven Weisbrot. In response, the Plaintiffs also filed a motion to exclude Spokeo’s expert, David Alfaro.
Economics Expert Witness
Michael Naaman, Ph.D., is a senior consultant specializing in antitrust, econometrics, and machine learning. He has provided economic and econometric analysis in issues relating to patent infringement and intellectual property, false advertising, and antitrust disputes.
Naaman has a decade of experience in the economic consulting industry. He received his Ph.D. in economics from Rice University, and he received a M.S. in statistics and B.S. in economics, math, and physics from Tulane University.
Law Expert Witness
Steven Weisbrot, Esq. has been responsible for the design and implementation of hundreds of court-approved notice and administration programs. He is President and Chief Executive Officer of Angeion Group, a leading provider of comprehensive settlement management services. Weisbrot is a licensed attorney in Pennsylvania and New Jersey.
Data Science Expert Witness
David Alfaro is a Senior Managing Director and co-leads the Data & Analytics West Coast practice and is based in San Francisco. Over his 30-year career, Alfaro has led more than 200 engagements as an expert witness and expert consultant, nearly all of which have been in the investigations and disputes space.
Moreover, he is an expert in the areas of collecting enterprise-wide information with extensive experience in complex, data-intensive analyses in response to government or internal investigations and litigation. In this capacity, Alfaro has provided formal and informal testimony to federal and state courts, the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), the Federal Bureau of Investigation (“FBI”), the Securities and Exchange Commission (“SEC”), the Department of Justice (“DOJ”), the U.S. Attorney’s Office, the Financial Industry Regulatory Authority (“FINRA”) and other federal agencies.
Discussion by the Court
Spokeo’s Motion to Exclude Declarations and Testimony of Michael Naaman and Spokeo’s Motion to Strike Naaman’s New Reply Declaration
Spokeo filed a motion to exclude Naaman’s declaration and testimony, arguing that his class size calculations are unreliable and that his method to calculate damages is fundamentally flawed.
Spokeo argued that Naaman failed to exclude Spokeo users, dead people, people who assigned their rights, duplicated profiles, profiles with inaccurate home addresses, and profiles that refer to people who are not real from his class size calculations. The Court considered the argument superfluous as Spokeo did not challenge numerosity. Even if Naaman should have excluded each of these, the classes clearly would still meet the numerosity requirements given the data upon which he relied and the evidence of Spokeo’s business model, which is apparently designed to have a teaser profile for every American adult.
Also, Spokeo sought to exclude Naaman’s declaration and testimony about damages calculations, asserting that Naaman did not provide a method for calculating damages and instead simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes.
The Court held that, pursuant to Rule 702, it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages, and this would help the trier of fact.
Spokeo’s Motion to Exclude Declarations and Testimony of Steven Weisbrot
Class Notification:
Spokeo also moved to exclude the declaration and testimony from Weisbrot about class notification, asserting that it was irrelevant and that its methodology was unreliable.
Weisbrot’s proposed notification method involved sending emails to potential class members using the email addresses posted on Spokeo’s teaser profiles, by publication in the media, and by website. Though his proposed method provided notice to the nationwide classes, he explained how he would and could use the same method on a narrower target audience if smaller classes were certified, such as statewide classes.
Spokeo contended that Weisbrot’s notice plan will provide notice to all potential class members in the Purchase classes, and that this is overbroad because it is not directed only to members of the Viewed Prior to Purchase classes, for which notice is mandatory under Rule 23(b)(3). But the Federal Rules permitted notice to 23(b)(2) classes like the Purchase classes, and Spokeo offered no reason why notice should not be provided to them.
The Court rejected Spokeo’s argument that Weisbrot not offering a way to target solely Viewed Prior to Purchase members was merely another way to argue that the Plaintiffs were unable to identify their own class members from common evidence. Moreover, the Court found Spokeo’s argument about Plaintiffs self-identifying bizarre because claimants do not have to know pre-filing which class they are in.
Notice Methodology
Finally, Spokeo asserted that Weisbrot should not rely on the email addresses that Spokeo has in its possession and includes for teaser profiles because they might not be real or correspond to a real person. Despite Spokeo’s asserting that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court found it highly likely that many of the email addresses were correct for many of the teaser profiles.
Plaintiffs’ Motion to Exclude Declaration and Testimony of David Alfaro
Plaintiff argued that Alfaro misrepresented evidence about Spokeo data vendors, was unqualified to opine on class size or Naaman’s methodology, was not an expert on class notice and could not opine on Weisbrot’s methodology, and provided improper legal conclusions.
The Court held that it did not rely on Alfaro’s declarations to assess Naaman’s declaration or the validity of Weisbrot’s methodology. In other words, the Court denied Plaintiff’s motion to exclude Alfaro’s testimony as moot because that was the driving basis for which the Plaintiffs challenged Alfaro’s declaration.
Held
The Court granted Plaintiffs’ motion for class certification for the California and Ohio classes, with certain amendments to the class definitions. The motion for the nationwide classes was withdrawn.
To sum it up, the Court denied Spokeo’s motion to exclude the testimony of Michael Naaman and Steven Weisbrot. The Plaintiffs’ motion to exclude David Alfaro’s declaration and testimony was denied as moot.
Key Takeaway:
- Naaman simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes. The Court held it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages.
- Despite Spokeo’s assertion that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court held that it was highly likely that many of the email addresses are correct for many of the teaser profiles. Hence, Weisbrot could rely on the email addresses that Spokeo had in its possession and remove junk, fake, or inaccurate emails, to the extent possible.
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