In Bilotta v. Citizen’s Information Associates, LLC, Case No.: 13-2811, 2014 WL 2050853 (M.D. Fla. May 19, 2014) (Bilotta v Citizens), the United States District Court for the Middle District of Florida recently denied the plaintiff’s motion for class certification in a putative class action brought against the owners and operators of bustedmugshots.com, mugshotsonline.com, justmugshots.com, mugshots.mobi, and whosarrested.com (hereinafter “the Websites”).  The Websites retrieve mug shots from various law enforcement websites, publish them, and then charge a fee to remove them.

After her mug shot was posted on one of the Websites, Plaintiff filed a complaint for injunctive relief and damages for violations of Florida’s Right to Publicity Statute (Fla. Stat. § 540.08), common law invasion of privacy, violation of Florida’s Deceptive and Unfair Trade Practices Act (Fla. Stat. § 501.201, et seq.), and unjust enrichment.  Plaintiff did not allege that she paid to have her mug shot removed from any of the Websites or that her image had substantial commercial value.  Plaintiff, therefore, sought certification only of the injunctive relief claims for violations of §§ 540.08 and 501.201, et seq.  Plaintiff did not request certification as to any damages claims.  The proposed class was defined as: “[a]ll persons who were arrested in Florida and whose names and photographs have been published on the Websites since August 30, 2009.”  Id. at *1.

Although Plaintiff established the numerosity, commonalty, and typicality requirements of Federal Rule of Civil Procedure 23(a), she did not convince the Court that she was an adequate class representative.  Specifically, the Court found that “Plaintiff’s claims differ significantly from those of the class members who paid for the unpublishing services and those individuals whose images have substantial commercial value.  Plaintiff has not demonstrated any commercial value in her image or likeness and has made it clear that she will not pursue monetary damages as a class, thereby depriving class members of the opportunity to litigate all of their claims in one action and determine whether there is more value in the monetary relief as opposed to the injunctive relief.”  Id. at *5 (internal citations omitted).

The Websites are not out of the woods yet, however, as the Court’s ruling appears to suggest that certification would be appropriate with a more suitable class representative.

 

 

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