Consumer Protection  –  Court dismisses suit over consumer database

Where the plaintiff alleged the selling of his name to other entities, for later use for advertising purposes, violated Virginia statutory law, the court disagreed.

Background

Shelby Zelonis Roberson sued Acxiom LLC, asserting two counts: (1) violation of Code of Virginia § 18.2-216.1 and (2) violation of Code of Virginia § 8.01-40. Acxiom has filed a motion to dismiss.

Analysis

Defendant argues that plaintiff fails to state a claim under §§ 8.01-40 or § 18.2-216.l because they have not alleged Acxiom “used” their names for “the purposes of trade,” as required under both statutes. The parties (and the court) have identified only one Virginia state court case addressing the issue, US. News & World Rep., Inc. v.
Avrahami, 1996 WL 1065557 (Va. Cir. Ct. June 13, 1996).

There, the circuit court concluded that “[t]he inclusion of an individual name as part of a mailing list constitutes neither a use for an advertising purpose nor a use for the purpose of trade, as defined by [Section 8.01-40].” This interpretation is consistent with right-to-publicity cases in other jurisdictions. These include cases involving extensive databases like the one at issue here.

Plaintiffs argue that the court should instead rely on In re Clearview Al, Inc. Consumer Priv. Litig., 585 F. Supp. 3d 1111 (N.D. Ill. 2022), which briefly addressed § 8.01-40 in a lengthy opinion largely addressing other issues. The Clearview case appears to be an outlier and is otherwise unpersuasive where the specific argument raised here was not presented to that court, and it thus did not address the case law recounted above.

The Clearview court quoted an opinion by this district judge, which stated generally that, “[i]n determining whether the use was ‘for the purposes of trade,’ courts are to consider whether the name was used to draw trade to an entity.” The Clearview court then, without further explanation, concluded that the plaintiffs in its case had “sufficiently alleged that the Clearview defendants profited from the unconsented use of their likenesses under ‘for purposes of trade.’”

But neither the quote nor the ultimate holding in this court’s prior case stand for the proposition that “profiting” from the sale of names (or pictures) is sufficient by itself to qualify as “us[ing]” such names (or pictures) “for purposes of trade.” Indeed, the facts of this court’s prior case are clearly distinguishable from those presented in both Clearview and here. There, the defendant had associated the plaintiff’s name with an organization in a way that implied endorsement in order to draw trade to that organization.

Moreover, after the Clearview decision, the Seventh Circuit (in which the Northern District of Illinois sits) affirmed the dismissal of a mailing list case, citing the Virginia circuit court’s Avrahami case approvingly: Huston v. Hearst Commc’ns, Inc., 53 F.4th 1097, 1101 (7th Cir. 2022). Accordingly, because the Clearview court relied only on this court’s prior opinion and otherwise did not address the authority recounted supra and the Seventh Circuit’s subsequent decision has undermined the holding of Clearview and underscored the decision in Avrahami, the court finds the Clearview court’s interpretations of § 8.01-40 and this court’s prior decision unpersuasive.

In sum, although Acxiom’s alleged collection of data far exceeds the scope of a traditional mailing list, the Virginia statutes asserted here ultimately protect only a person’s name, portrait or picture, not any of this other data. And plaintiff does not make any allegations regarding their portraits or pictures.

Thus, the core of the issue here too is whether selling a list of names for other entities to later use for advertising purposes constitutes a “use” “for purposes of trade” under §§  8.01-40 and 18.2-216.1. A Virginia court – consistent with decisions from other courts addressing this issue – has specifically answered “no.” That interpretation is consistent with the plain meaning of the statutes and case law from the Supreme Court of Virginia on the statutes. Accordingly, although the court is troubled by the extensive allegations in the complaint, plaintiff has failed to plausibly allege that these allegations constitute a violation of the specific statutes under which they have brought this action.

Defendant’s motion to dismiss granted.

Roberson v. Acxiom LLC, Case No. 1:25-cv-165, March 25, 2026. EDVA at Alexandria (Alston). VLW 026-3-147. 16 pp.

Full-Text Opinion

VLW 026-3-147
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