July 30, 2015
Weil triumphed in the U.S. District Court for the Central District of California on behalf of CBS Interactive Inc. in defeating class certification in a landmark right of publicity case. The plaintiff in this action alleged that CBS had used student-athletes’ names, images, and likenesses, without their consent, in connection with its provision of services to NCAA member institutions’ sale of photographs of student-athletes through the schools’ official athletic websites. The plaintiff had asked for a nationwide class of potentially over a million current and former student-athletes and was seeking hundreds of millions of dollars in minimum statutory damages under California’s right of publicity statute.
Following significant fact and expert-related class discovery and class certification briefing and argument, the district court denied certification in its entirety. The Court rejected Plaintiff’s attempt to apply California law to a nationwide class in this case, concluding that there were material differences in states’ right of publicity laws, and that other states’ interests in applying their own right of publicity laws outweighed California’s interest. The Court also found that the need to then apply various states’ right of publicity laws to class members’ claims also weighed against a finding of predominance. The Court further concluded that class certification was improper because CBS had shown “[t]his case presents a slew of individual questions and affirmative defenses that would need to be litigated for each image and student-athlete” that “clearly predominate over the common issues present in this action,” including because CBS had demonstrated that the sole named plaintiff in the case had expressly and impliedly consented to the uses at issue (also rendering him an atypical and inadequate class representative). A class action also was not a superior way to proceed because the Court concluded the case would be “totally unmanageable” as “even determining CBSI’s liability would require hundreds of mini-trials into the issues of consent and damages.”
The Weil litigation team was led by partners Yehudah Buchweitz and Eric Hochstadt and included associates Jessie Mishkin, Cheryl James, Kevin Kramer, Tracy Ederer and Cameron Cook. CBS was also represented by local counsel Bruce Isaacs of Davis Wright Tremaine LLP. The team was also assisted in other aspects of the case by partners Stephen Karotkin and Gavin Westerman, counsel Paul Ferrillo, and associates Doron Kenter, Joseph Adamson, Joy Dineo, and Maxwell Copeland.