Whether the district court abused its discretion in denying class certification on the basis that common questions would not predominate over individual ones as required by Rule 23(b)(3).14
Between April 2015 and February 2016, Groupon used an "Instagram Widget" software it had developed to collect and display photographs posted to Instagram that were taken at particular locations where Groupon offered deals. The Instagram Widget allowed visitors to certain "Deal Pages" on Groupon's website to see photographs taken at those businesses. If the Groupon visitor hovered her cursor over a displayed photograph, the username of the Instagram user who posted the photograph and the photograph's caption, if any, would be displayed.
Plaintiff Christine Dancel posted a photograph taken at an Illinois restaurant to Instagram, and this photograph was displayed on the Groupon Deal Page for that restaurant using the Instagram Widget. She brought a putative class action alleging violations of the Illinois Right to Publicity Act ("IRPA"). The IRPA prohibits the use of a person's identity—defined as "any attribute of an individual that serves to identify that individual to an ordinary reasonable viewer or listener"—for commercial purposes without consent.15
Dancel sought to certify a class of Instagram users whose photographs were acquired and used on a Groupon webpage for an Illinois business. The district court denied class certification on predominance grounds, concluding that whether an Instagram username establishes identity under the IRPA "is inherently a question of fact that cannot be answered with the same evidence across the putative class."16 The district court rejected Dancel's argument that the common question was whether Instagram usernames "categorically serve to identify that individual to an ordinary, reasonable viewer" of Groupon's website, and concluded that while there exists a common question as to whether any username identifies an individual, that argument "ignores the individual inquiry that is the essence of determining 'identity' under the IRPA."17
On appeal, Dancel argued that the district court improperly rejected her theory of class liability on the merits at the class-certification stage, "rather than assessing whether her theory is supported by common evidence."18 She further argued that, even if the district court could have addressed the merits, it erroneously interpreted the IRPA, asserting that "the content of each class member's username is not important to either Ms. Dancel's legal theory or the required inquiry under the IRPA; the fact that each username uniquely identifies an Instagram user is."19
On December 18, 2019, the Seventh Circuit affirmed the district court's order denying class certification, concluding that the district court did not abuse its discretion.
The Seventh Circuit first rejected Dancel's argument that the district court improperly addressed the merits of her IRPA claim, noting that "the court must satisfy itself with a 'rigorous analysis' that the prerequisites of certification are met, even if that analysis has 'some overlap with the merits of the plaintiff's underlying claim.'"20 The Seventh Circuit stated that unlike the cases cited by Dancel where the court granted class certification even where there was a risk it might later need to decertify the class, Dancel's theory "presents a question that is common only if she is right," and elaborated that:
If the answer to that question is yes, then one significant aspect of the case can be resolved in the class's favor (if, as a factual matter, Groupon used the usernames within the meaning of the IRPA). But if usernames are not categorically an identity under the IRPA, and the court decertified the class, then the same element would remain entirely subject to dispute for each plaintiff.21
The court further stated that the district court "was right to identify the starting point as 'the substantive elements of plaintiffs' cause of action and . . . the proof necessary for the various elements," and that because "the present dispute is precisely what evidence is needed to make a prima facie case for the identity element under the IRPA," the district court properly addressed this at the class-certification stage.22
The Seventh Circuit next turned to the interpretation of "identity" under the IRPA, rejecting Dancel's argument that all Instagram usernames are identities within the meaning of the statute. The court stated that the relevant inquiry under the IRPA turns on a username's content, and that "[c]ategorically, Instagram usernames identify only Instagram accounts," but the IRPA requires that an attribute serve to identify the particular individual whose identity is being appropriated.23 The court concluded that Dancel could not answer the question of whether an Instagram username identifies a particular person "for herself or for any putative class member with only her proposed common evidence, and so she cannot develop, for each class member, a common prima facie case under the identity element of an IRPA claim."24
Thoughts & Takeaways
In rejecting Dancel's argument that the district court improperly addressed the merits at the class-certification stage, the Seventh Circuit highlighted that "Rule 23 is more than 'a mere pleading standard.'"25 Thus, while the court should only look to the merits to the extent necessary to determine whether the requirements of Rule 23 are satisfied, a plaintiff seeking to certify a class must do more than simply assert that there exists a common question.
Additionally, the Seventh Circuit noted that neither it nor the district court had decided the merits of any putative class member's claim. The decision acknowledged that certain Instagram usernames might satisfy the IRPA's definition of identity, and does not preclude putative class members from individually pursuing IRPA claims on this basis.
Read the opinion here.
14. Opinion, Dancel v. Groupon, Inc., No. 19-1831 (7th Cir. Dec. 18, 2019), ECF No. 36.
15. 765 Ill. Comp. Stat. 1075/5, 1075/30 (1999).
16. Dancel v. Groupon, Inc., No. 18 C 2027, 2019 WL 1013562, at *3 (N.D. Ill. Mar. 4, 2019).
17. Id. (internal quotation marks and citation omitted).
18. Plaintiff-Appellant's Opening Brief at 22, Dancel, No. 19-1831 (7th Cir. June 10, 2019), ECF No. 10.
19. Id. at 35-36.
20. Opinion, supra note 14, at 8 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011)).
21. Id. at 10-11.
22. Id. at 13-14 (quoting Simer v. Rios, 661 F.2d 655, 674 (7th Cir. 1981)).
23. Id. at 15-16.
24. Id. at 16.
25. Id. at 8 (quoting Dukes, 564 U.S. at 350-51).
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