Ancestry.com wins dismissal of yearbook database suit

Boxes of Ancestry.com DNA kits sit in a box ready for sale at the 2019 RootsTech annual genealogical event in Utah, U.S. REUTERS/George Frey

(Reuters) - Ancestry.com Inc and its lawyers at Quinn Emanuel Urquhart & Sullivan have beat back a lawsuit alleging the company uses and profits from photos and personal data in its yearbook database without consent, persuading a federal judge to dismiss the case for the second time.

An amended complaint by a proposed class of California residents didn't sway U.S. Magistrate Judge Laurel Beeler in San Francisco from her analysis in a March decision that the plaintiffs lack standing and that the genealogy giant is immune from liability under Section 230 of the Communications Decency Act, Beeler said in a Tuesday order.

While Beeler had allowed the plaintiffs to amend their complaint after the prior dismissal, she found they "did not cure the complaint's deficiencies" and dismissed the case with prejudice.

Attorney Benjamin Osborn, who represents the plaintiffs along with lawyers from Morgan & Morgan, said in an email Wednesday that they are disappointed with the ruling.

"We believe the ruling to be inconsistent with controlling Ninth Circuit authority, and we intend to appeal," he said.

An Ancestry spokesperson said the company is pleased with the decision. A Quinn Emanuel team led by L.A.-based national class action practice chair Shon Morgan represents the company and its affiliates.

The plaintiffs alleged Ancestry uses names, photographs and likenesses from school yearbook records without permission in a promotional version of its website and in emails to entice potential customers to buy subscriptions and encourage existing customers to upgrade. They asserted claims for violation of their right to publicity, unlawful and unfair business practices, intrusion upon seclusion and unjust enrichment.

Beeler found the plaintiffs' allegations that Ancestry uses public profiles to solicit customers, and that they suffered emotional distress and theft of intellectual property, don't create an "injury in fact" to establish standing.

"There must be a concrete injury in additional to a statutory violation" for injury in fact, she said. "Here, there is no injury except for the statutory violation."

Beeler also was not persuaded by the plaintiffs' arguments in the renewed complaint, related to how Ancestry may have acquired the yearbook records. Beeler previously found the company is immune under the Communications Decency Act because it didn't create the yearbook records.

"This argument does not change the court's conclusion that Ancestry is not a content provider," Beeler said. "Ancestry obviously did not create the yearbooks. Instead, it necessarily used information provided by another information content provider and is immune under (the CDA)."

The case is Callahan et al v. Ancestry.com Inc. et al, U.S. District Court for the Northern District of California, No. 3:20-cv-08437

For the plaintiffs: Benjamin Osborn of Law Office of Benjamin R. Osborn and Michael Ram of Morgan & Morgan

For Ancestry: Shon Morgan of Quinn Emanuel Urquhart & Sullivan

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Sara Merken reports on privacy and data security, as well as the business of law, including legal innovation and key players in the legal services industry. Reach her at sara.merken@thomsonreuters.com