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Dancel v. Groupon, Inc.

United States Court of Appeals, Seventh Circuit

December 18, 2019

Christine Dancel, Plaintiff-Appellant,
v.
Groupon, Inc., Defendant-Appellee.

          Argued September 16, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cv-02027 - Ronald A. Guzmán, Judge.

          Before Bauer, Brennan, and St. Eve, Circuit Judges.

          St. Eve, Circuit Judge.

         Is a person's username a part of her identity? That is a complex question, but one that Christine Dancel proposes can be resolved categorically for all usernames and all people. The district court thought otherwise and declined to certify a class because it would have to be decided username-by-username whether each one is an aspect of a given class member's identity, at least as that word is defined by the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/5. Dancel contends this rejection of her theory was an improper decision on the merits of her and the class's claims, and the court therefore abused its discretion at the class-certification stage. We see no such mistake in the district court's reasoning and affirm the order denying certification.

         I. Background

         Groupon, Inc. is an online marketplace that sells vouchers for other businesses. Groupon's website gives each business its own page with information about the business and the discounts available. Between April 2015 and February 2016, some visitors to the site could scroll down each page to see a "Photos" section that displayed up to nine pictures. If the visitor clicked a button, the page would reveal up to eighteen more. Groupon collected and displayed these pictures automatically using what it calls the "Instagram Widget." As its name suggests, this Widget pulled publicly available pictures from the social networking service Instagram. It selected which pictures to assign to each page based on data linking the photos to the advertised business's location. When a Groupon visitor hovered her cursor over a displayed photo, the Widget would show the unique, user-selected username of the Instagram account whose photo was being displayed and a caption, if the user had attached one to the photo.

         Dancel is an Instagram user, and like all Instagram users, her account had a username-namely, "meowchristine." In 2015, Dancel uploaded to her account a picture of herself and her boyfriend visiting Philly G's, a restaurant in Vernon Hills, Illinois. This picture was one of several Groupon displayed on Philly G's page while the Widget was active.

         Dancel alleges that Groupon's inclusion of her photo and username on Philly G's page violated the IRPA, which prohibits the use of a person's identity-meaning an "attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener"-for commercial purposes without consent. 765 ILCS 1075/5, 30. She filed suit in the Circuit Court of Cook County and sought to maintain the action on behalf of a class of "Illinois residents" whose photographs Groupon had similarly shown on its pages. The parties litigated in that posture for two years until Dancel moved to certify a different class, defined as "[a]ll persons who maintained an Instagram Account and whose photograph (or photographs) from such account was (or were) acquired and used on a groupon.com webpage for an Illinois business." The class also had a sub-class: "All members of the Instagram Class whose likeness appeared in any photograph acquired and used by Groupon."

         In response to these new class definitions, Groupon removed the case to federal court. Dancel tried to argue this removal came too late, but the district court disagreed, denied her motion to remand to state court, and proceeded to decide whether to certify her proposed class under Federal Rule of Civil Procedure 23(b)(3). That provision requires, among other things, "that the questions of law or fact common to class members predominate over any questions affecting only individual members." Dancel identified the common question that united the class as "whether Instagram usernames categorically fall within the statutory definition of 'identity.'" She distinguished this inquiry from the individualized question "whether any particular username identifies an individual."

         The district court found Dancel's categorical theory "unpersuasive." Though the court accepted that a common question existed as to whether any username identifies an individual, that question was not enough to certify a class because it "ignore[d] the individual inquiry that is the essence of determining 'identity' under the IRPA ." The district court listed several of the usernames belonging to class members-e.g., eawhalen, artistbarbie, isa.tdg, loparse, johanneus-and concluded that it was "simply impossible to make any type of across-the-board determination as to whether these names 'identify' a particular person, as that term is defined by the IRPA." Because it determined that the IRPA, as applied to the facts of this case, required a "username-by-username (photo-by-photo)" inquiry, the court found that common questions would not predominate over individual ones and denied certification. Dancel petitioned for review of that decision, and we granted the petition. Fed.R.Civ.P. 23(f).

         II. Jurisdiction

         We start our analysis where we left off after our previous opinion: the district court's jurisdiction. Dancel v. Groupon, Inc., 940 F.3d 381, 386 (7th Cir. 2019). The Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), extends federal subject-mater jurisdiction to a proposed class action that is, among other things, minimally diverse-meaning one member of the plaintiff class is a citizen of a state different from any one defendant. Groupon is a Delaware corporation with its principal place of business in Illinois; it is therefore a citizen of those two states. Instead of alleging the citizenship of even one diverse class member, Groupon asserted only that the class "undoubtedly would include at least some undetermined number of non-Illinois and non-Delaware citizens as class plaintiffs." We agreed with Dancel that this allegation failed to carry Groupon's burden and directed Groupon to amend its notice of removal. Dancel, 940 F.3d at 384-85. Though 28 U.S.C. § 1653 permits a party to amend jurisdictional allegations on appeal, see Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012), Groupon said it required discovery to make those amendments, so we ordered a limited remand for the district court to oversee that discovery and confirm its jurisdiction. Dancel, 940 F.3d at 386.

         On remand, Groupon amended its allegations and supplemented its notice of removal with three affidavits in which the affiants attested to their significant ties to their home states, which are not Illinois or Delaware. Groupon also provided the incorporation and registration documents for two Instagram-using businesses based in California and Missouri. Dancel argued that these businesses and one of the affiants fell outside the class definition, but she conceded that the other two affidavits belonged to putative class members domiciled in Virginia and California, respectively. See Myrick v. WellPoint, Inc., 764 F.3d 662, 664 (7th Cir. 2014) ("Citizenship means domicile (the person's long-term plan for a state of habitation) rather than just current residence."). The district court saw no reason to conduct an evidentiary hearing to peer beyond Groupon's allegations and Dancel's concession (which was well supported by Groupon's evidence anyway), and neither do we. See Tilden v. Comm'r, 846 F.3d 882, 887 (7th Cir. 2017) (explaining that parties can agree to the fact of the parties' citizen-ship-as distinct from the existence of jurisdiction-if the agreement is not collusive). ...


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