IP Law Daily, PUBLICITY RIGHTS—9th Cir.: Class certification upheld over Classmates.com’s alleged use of yearbook names in advertising, (Sep 25, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

Common evidence could determine whether making individuals’ names searchable within an online yearbook database commercially exploited their identities without consent under California’s right-of-publicity statute.

A class action challenging an online yearbook service’s alleged use of individuals’ names to promote paid subscriptions can proceed, the Ninth Circuit has found. Affirming certification of damages and injunctive classes, the court rejected the website operator’s arguments that individualized questions concerning searches, injury, consent, and class membership predominated. However, the court did not decide whether merely making a person’s name searchable alongside an advertising system actually violates Cal. Civ. Code § 3344, leaving that merits question for later proceedings (Nolen v. Peopleconnect, Inc., No. 24-3894 (9th Cir. Sep. 24, 2026)).

Yearbook searches. PeopleConnect, Inc. operates Classmates.com, an online library containing more than 450,000 digitized yearbooks. The company purchases yearbooks and accepts donated copies, scans them, and uses text-recognition software to make each page searchable. Visitors can browse yearbooks and search for individuals, while registered free members receive broader access to high-resolution pages. Paid subscribers receive additional services.

California resident Alicia Nolen, whose name and photograph appear in a yearbook on the website, alleged that PeopleConnect violated Cal. Civ. Code § 3344 by using individuals’ names without consent to advertise Classmates+ subscriptions. Under one theory, a visitor who searched for a name and clicked a corresponding thumbnail was prompted to register for a free account and then immediately received an advertisement for a paid subscription. Under another, subscription advertisements could appear alongside search results containing names when free members searched the yearbook collection.

Nolen contended that the statutory violation occurred when PeopleConnect made an individual’s identity searchable within this advertising flow, even if nobody actually searched for that person. The district court certified damages and injunctive classes of California residents who, among other requirements, had never registered for Classmates.com or donated a yearbook and whose names generated qualifying results when searched in California yearbooks on the site. PeopleConnect appealed the certification order under Federal Rule of Civil Procedure 23(f).

Searchability. PeopleConnect principally argued that common issues did not predominate because a Cal. Civ. Code § 3344 claimant must establish that someone actually searched for the claimant. Because no classwide evidence identified whose names had actually been searched, the company maintained that liability would require individualized inquiries.

The Ninth Circuit declined to decide whether Cal. Civ. Code § 3344 ultimately requires an actual search rather than mere searchability. Relying on Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022) (en banc), the court explained that certification requires rigorous analysis of Rule 23 but does not permit turning the proceeding into a trial on the merits. Similarly, Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), distinguished questions about whether class members share common issues from whether their evidence will ultimately prove those issues.

The elements of a Cal. Civ. Code § 3344 claim include use of the plaintiff’s identity, appropriation of the name or likeness to the defendant’s advantage, lack of consent, resulting injury, knowing use for advertising or solicitation, and a direct connection between the use and the commercial purpose. Citing Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), the court noted that the statute itself characterizes the direct connection between an identity and advertising as a question of fact.

Whether making class members’ identities searchable was sufficiently connected with PeopleConnect’s advertising could therefore be determined using common evidence. If a factfinder ultimately concludes that searchability is insufficient, the class could fail together; if the theory succeeds, common evidence could establish the element for the class. The possibility that Nolen’s theory might eventually fail did not defeat certification.

Economic injury. PeopleConnect next maintained that Cal. Civ. Code § 3344 required individualized proof of injury. The Ninth Circuit rejected the company’s argument, at least on the record presented at certification.

The district court reasonably inferred that if PeopleConnect used an individual’s identity in direct connection with advertising, the identity had at least some economic value. Relying on Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974), the appeals court explained that appropriation of even a relatively unknown person’s identity may cause economic injury or create economic value in something previously considered valueless. Cal. Civ. Code § 3344 is therefore not confined to celebrities or people who could command substantial endorsement fees.

An ordinary person whose identity was commercially exploited could plausibly have negotiated at least a nominal licensing fee. Depriving that person of compensation could constitute economic injury. Moreover, Cal. Civ. Code § 3344 provides for the greater of $750 in statutory damages or actual damages, so a claimant seeking statutory damages need not establish actual damages equaling or exceeding $750.

PeopleConnect’s own conduct provided additional common evidence. The company purchased yearbooks to expand its collection and licensed yearbooks to third parties, circumstances from which a factfinder could infer that identities appearing in yearbooks possessed at least nominal monetary value. The Ninth Circuit again emphasized that a jury remained free to reject that evidence; the relevant certification question was whether injury could be adjudicated without individualized inquiries overwhelming the common issues.

Class membership. The court also rejected PeopleConnect’s contention that identifying eligible class members would require thousands of individualized proceedings. The company pointed to individuals who may have signed school consent forms, people sharing identical names, registered Classmates.com users, yearbook donors, and individuals whose names were not searchable because of limitations in the website’s text-recognition technology.

The sample school releases did not establish that students had authorized PeopleConnect itself to use their identities for commercial advertising. Nor did occasional duplicate names create a predominance problem. The evidence showed only limited instances of students in the same yearbook having identical or similarly spelled names, and most individuals could readily be identified by combining name, school, location, and yearbook year.

For registered users and yearbook donors, the district court proposed that claimants self-certify their eligibility and provide identifying information, after which PeopleConnect could cross-check its registration database and donation records. Sampling and other auditing procedures could detect fraudulent claims. Citing Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), the Ninth Circuit reiterated that Rule 23 does not impose a separate administrative-feasibility prerequisite requiring perfect identification of every class member before certification.

Similar reasoning applied to individuals whose names were not searchable because the text-recognition system failed to detect them. Such people were outside the class, but disputes about searchability could be addressed at a later claims stage. If subsequent developments revealed genuine obstacles to classwide adjudication, PeopleConnect remained free to seek decertification.

Adequacy. PeopleConnect also challenged Nolen’s adequacy as class representative. It contended that proceeding solely on a “searchable” theory potentially sacrificed stronger claims held by individuals whose names had actually been searched. Those individuals, the company argued, might have stronger evidence connecting use of their identities with subscription advertising.

The Ninth Circuit did not decide that issue because PeopleConnect had not properly presented the intraclass-conflict argument in the district court or its appellate briefs. It nevertheless explained that courts considering such a challenge should examine whether the representative’s litigation strategy obtains the benefits of aggregate litigation while striking a justifiable balance between any abandoned claims and the relief being pursued.

Finally, Nolen could adequately represent the injunctive class even though her name was no longer searchable. PeopleConnect had suppressed her name only after she filed suit. The company could not render the representative inadequate by voluntarily stopping the challenged conduct specifically as to her. Finding no basis to disturb either class, the Ninth Circuit affirmed the certification order.

The Case is No. 24-3894.

Judge: Berzon, M.

Attorneys: Raina C. Borrelli (Strauss Borrelli, PLLC) for Alicia Nolen. Ian Heath Gershengorn (Jenner & Block, LLP) for PeopleConnect, Inc.

Companies: PeopleConnect, Inc.

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