In Nolen v. PeopleConnect, the Ninth Circuit Lets a Classmates.com Class Sue Over Searchable Names Without Proving Anyone Searched Them

J.R. Howell  |  September 24, 2026

On September 24, 2026, the Ninth Circuit affirmed the certification of damages and injunctive classes of Californians who say PeopleConnect, Inc. used their names to sell Classmates.com subscriptions without their consent.[1] In Nolen v. PeeopleConnect, Judge Berzon wrote for a panel that included Judges Friedland and Mendoza. The claim, brought by Alicia Nolen, is that PeopleConnect violated California’s right-of-publicity statute by making their names searchable inside the site’s advertising flow.[2] The class numbers an estimated 100,000 people.[3] None of them has to prove that anyone ever searched for his or her name to belong to it.[4]

The statute guarantees each injured person at least $750. For a class this size, that floor alone puts about $75 million in play before any member proves actual damages.

The panel did not decide that a searchable name is enough to make out a claim. It said so in terms: “Whether evidence of searchability is sufficient to sustain a § 3344 claim is the question PeopleConnect asks us to—but that we cannot—answer today.”[5] What the court decided is that the question is common to every class member and that the statute assigns it to the trier of fact. That procedural holding has substantive consequences. Nolen’s theory places the wrong in a standing condition, a name held as inventory by a company that sells access to it. PeopleConnect’s theory places the wrong in a discrete event, a stranger typing the name. The gap between those two theories is the gap this publication has called the interference fallacy. The Ninth Circuit has now sent it to a jury.

Classmates.com sells subscriptions against an index of names

PeopleConnect has built an archive of more than 450,000 yearbooks by buying them and accepting donated copies. For each one, it scans the pages, runs a program that makes the printed text searchable and uploads the images.[6] Anyone can then search the archive for a name. What the searcher sees next depends on who the searcher is.

A visitor who has not registered can browse and search. The first page of each yearbook appears at full resolution. The remaining pages appear as low-resolution thumbnails. Clicking one prompts the visitor to register. The court described the next step plainly: “Once she registers, she will immediately receive an ad encouraging her to purchase a subscription.”[7]A registered free member sees every page at full resolution. For that member, “a subscription ad may appear as one of several banner ads along the side of the search results page.”[8] Paid subscribers see no subscription ads.[9] The opinion refers to the first path as the sequence theory and to the second as the banner theory. In both, the name does its commercial work at the point where a search result meets an offer to pay.

The class is defined to capture the people on the other side of that transaction. It includes California residents who have never registered with Classmates.com, have never donated a yearbook to it and whose names, when searched, return at least one record from a California yearbook the site first made public on or after December 18, 2018.[10] Two features of the definition matter. It excludes everyone who ever dealt with the company. Every member is a stranger to it. The definition also turns on what a search would return. Membership does not depend on whether anyone ever ran the search.

The two sides place the wrong at different moments

Section 3344 imposes liability on anyone who “knowingly uses another’s name” for purposes of advertising or selling products or services without the person’s prior consent. The injured person recovers the greater of $750 or actual damages, plus any profits attributable to the use.[11] Subdivision (e) supplies the limit that governs a case like this one. A name does not require consent merely because it appears in material that is commercially sponsored or carries paid advertising. Whether consent is required is instead “a question of fact,” which turns on whether the use “was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required.”[12]

Nolen’s answer to the subdivision (e) question is that “making individuals’ names searchable within [PeopleConnect’s] advertising flow is a commercial use requiring consent.”[13] On that theory, the use occurs when the company places a name in the index that feeds the sequence and banner flows. The proof is the same for every member. It consists of PeopleConnect’s own records of what it scanned, when it published each yearbook and what its search function returns.

PeopleConnect’s answer is that “a putative class member does not have a viable § 3344 claim absent proof that he or she has actually been searched on Classmates.com.”[14] On that theory, the use occurs only when a particular searcher types a particular name and sees the result beside the subscription offer. Each member would need evidence of that event in his or her own case. Proof of that kind is individual by nature. A class built on it could not satisfy Rule 23(b)(3)’s requirement that common questions predominate. The choice of theory therefore decided whether the case could proceed as a class at all.

The panel held the question common and left the answer to the trier of fact

PeopleConnect asked the Ninth Circuit to resolve the searched-or-searchable dispute at the certification stage. The panel declined. Rule 23 permits a court to reach a merits question only to the extent the answer bears on whether the rule’s requirements are met. A district court at certification “is merely to decide a suitable method of adjudicating the case and should not turn class certification into a mini-trial on the merits.”[15] Nor may it “decline certification merely because it considers plaintiffs’ evidence relating to the common question to be unpersuasive.”[16] When a defendant’s objection is that the plaintiffs’ proof will fail on an element, the Supreme Court has directed that “courts should engage that question as a matter of summary judgment, not class certification.”[17]

Setting the two possible outcomes side by side shows why. If searchability satisfies subdivision (e), every member proves the claim with the same evidence. If it does not, every member’s claim fails for the same reason. “In either scenario, ‘the class is entirely cohesive: It will prevail or fail in unison.’”[18] PeopleConnect’s strongest merits argument thus became a reason to certify. The statute confirms where the argument belongs, since subdivision (e) makes the direct-connection inquiry “a question of fact.”[19]

The panel applied the same reasoning to injury. PeopleConnect argued that each member would have to prove economic harm individually. The court answered with an inference drawn from the defendant’s own conduct: “One can reasonably infer that by using an individual’s likeness in direct connection with its advertising, the company believes her likeness is valuable. Otherwise, why would the company think using that person’s likeness would help increase their bottom line?”[20] The court grounded the inference in its own 1974 observation that “the appropriation of the identity of a relatively unknown person may result in economic injury or may itself create economic value in what was previously valueless.”[21] It also relied on the settled California rule that “[s]ection 3344 provides for minimum damages of $750, even if no actual damages are proven.”[22] Because the inference runs from what PeopleConnect did with the names, it is common proof. The panel likewise rejected objections about identifying class members, including the claim that shared names would require a person-by-person inquiry across the estimated 100,000 members.[23]

The searchable theory is a domination argument

The domination test, proposed in these pages, asks whether one party holds power over another that is asymmetric, arbitrary and standing.[24] Asymmetric power is concentrated in one party. Arbitrary power is uncontrolled by the will of the person subject to it or by any accountable check. Standing power persists whether or not it is exercised. The searchable theory describes a power with all three features. The facts the Ninth Circuit recited supply the proof.

The asymmetry lies in the archive. PeopleConnect holds more than 450,000 yearbooks. It decides which names to scan, index and place beside its offers. The people named hold nothing in the relationship.

The arbitrariness is written into the class definition. Membership requires that a person never registered with Classmates.com and never donated a yearbook to it. Every member is, by definition, someone who had no voice in the terms on which the company offers his or her name to the public.

The standing character of the power is what the searchable theory names. A name in the index is available to every visitor on every day, whether or not anyone looks for it. The panel’s injury reasoning points the same way. The court inferred value from the fact of use: the company would not put the name to work in its advertising unless the name helped sell subscriptions. In my view, that value does not arise one search at a time. A yearbook archive sells subscriptions because a prospective customer believes the names he wants are in it. The commercial value therefore belongs to the searchable inventory as a whole. Each name contributes to it by being available. On this account, the use occurs when the name enters the inventory.

PeopleConnect’s theory is the interference fallacy in the form privacy law most often takes. It treats a name as inert until a search occurs. It then measures the wrong by counting searches. Federal standing doctrine applies the same measure. In TransUnion LLC v. Ramirez, the Supreme Court held that “[t]he mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third party, causes no concrete harm.”[25] The Court also held that “[e]very class member must have Article III standing in order to recover individual damages.”[26] A searchable name that no one has searched is the nearest analogue in this record to TransUnion‘s undisclosed file. If the class prevails at trial, PeopleConnect can be expected to press that analogy against the damages judgment.

In my view, the analogy is weaker than it looks. The TransUnion file sat inside the company. The Classmates.com index is the product PeopleConnect markets to the public. A subscription is the purchase of access to it. The common law has long treated appropriation of a name for one’s own benefit as a privacy wrong distinct from disclosure: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”[27] The wrong in appropriation is the taking. The taking is complete when the name is put to commercial work. The domination test explains why that is the right place to locate the harm. A person whose name sits in the index lives subject to a standing power over how her identity is used to sell a product, on terms she never set. A search is one exercise of that power. The power existed before the search and persists after it.

The theory carries a price for members whose names were searched

The searchable theory has a cost, which the panel identified. Some class members were searched. Their claims rest on the discrete event PeopleConnect says the law requires. On PeopleConnect’s own reading of the statute, those are the strongest claims in the class. “If the class were ultimately to lose on their § 3344 claims under Nolen’s ‘searchable’ theory, that judgment would likely preclude ‘searched’ members of the class from bringing individual § 3344 claims based on their names having been searched.”[28] Members with valuable likenesses would also lose the chance to recover actual damages above the statutory floor.[29]

PeopleConnect did not raise this conflict in the district court. The panel held the argument unpreserved and acknowledged that “[o]ur circuit has never squarely addressed a situation in which a lead plaintiff’s strategic choice to pursue one legal theory while forgoing another might create an intraclass conflict.”[30] It then gave guidance for remand. It pointed to the Fifth Circuit’s three-factor test in Slade v. Progressive Security Insurance Co., which weighs “(1) the risk that unnamed class members will forfeit their right to pursue the waived claim in future litigation, (2) the value of the waived claim, and (3) the strategic value of the waiver.”[31] It paired that test with its own rule that “strategic litigation choices will not undermine a representative party’s adequacy if those choices inure to the benefit of the assertedly disadvantaged class members.”[32]

In my view, the domination frame indicates how the Slade analysis should come out. Every member, searched or not, suffered the standing wrong. The searched members suffered that wrong and one exercise of it. Pursuing the common wrong gives them class treatment of a claim they would otherwise have to prove by finding evidence of a stranger’s search. Members who value the searched claim more keep the ordinary protection of a Rule 23(b)(3) class, because the notice must tell them the court will exclude anyone who asks.[33] The panel added that the parties may seek to revise the notice if they believe it does not adequately protect higher-value claimants. It left open whether PeopleConnect may move to decertify on the present record.[34]

Companies that hold names as inventory now face a triable claim

Three consequences follow for lawyers and for the companies they advise.

The first is procedural. The case now moves to the merits, where PeopleConnect can press the searched theory at summary judgment and at trial. It cannot escape the injunctive class by removing the named plaintiff’s grievance. PeopleConnect suppressed Nolen’s name after she sued. The panel held that the company “may not ‘pick off’ and moot Nolen’s claim by remediating her injury after she filed suit.”[35] One procedural question remains open. The panel reserved whether PeopleConnect has a Seventh Amendment right to contest class members’ affidavits of membership.[36]

The second is commercial. The injury inference reaches any business that holds real people’s names as searchable inventory inside a paid funnel. People-search sites, data brokers, genealogy archives and AI products that surface named individuals as teaser results all run versions of the flows the court described. Under Nolen, a company’s decision to put a name to work in its advertising is itself evidence that the name has value. For a company whose index includes Californians, the $750 floor applies to every name that meets the direct-connection test.

The third is doctrinal. The question beneath the case reaches beyond § 3344. Whether a name that is held and offered but never retrieved supports a concrete injury is the question TransUnion poses for every privacy class built on data a company holds. I expect the answer the Ninth Circuit has allowed a jury to reach in Nolen to be tested on appeal from any judgment.

The jury in Nolen will be asked a question of fact about the connection between a name and an advertisement. Beneath it lies an older question. It asks whether the law should locate the wrong at the moment one party interferes or at the moment one party acquires a standing power to interfere. California wrote subdivision (e) broadly enough to allow either answer. The Ninth Circuit has ensured that the answer will be given at trial, on common proof, for 100,000 people at once.

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[1] Nolen v. PeopleConnect, Inc., No. 24-3894, slip op. at 5, 10, 50 (9th Cir. Sept. 24, 2026) (describing Classmates.com and the damages and injunctive classes and affirming the certification order).

[2] Id. at 9 (describing Nolen’s theory that making names searchable within the advertising flow is a commercial use requiring consent).

[3] Id. at 30 (referring to “the estimated 100,000 putative class members”).

[4] Id. at 10 (setting out a class definition that turns on whether a search for the member’s name yields at least one record).

[5] Id. at 15.

[6] Id. at 5-6 (describing a library of more than 450,000 yearbooks and how PeopleConnect acquires, scans and uploads them).

[7] Id. at 7.

[8] Id.

[9] Id. at 8 (noting that paid subscribers do not see subscription advertisements).

[10] Id. at 10 (setting out the class definition).

[11] Cal. Civ. Code § 3344(a) (West 2026) (imposing liability on “[a]ny person who knowingly uses another’s name” for advertising or selling without prior consent and providing for the greater of $750 or actual damages, plus attributable profits).

[12] Id. § 3344(e) (providing that it “shall be a question of fact” whether a use “was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required”); see Nolen, slip op. at 20 (applying subdivision (e)).

[13] Nolen, slip op. at 9.

[14] Id. at 13.

[15] Id. at 14 (internal quotation marks omitted); see Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (holding that merits questions “may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied”).

[16] Nolen, slip op. at 16.

[17] Id. at 15 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 457 (2016)).

[18] Id. at 19 (quoting Amgen, 568 U.S. at 460).

[19] Id. at 20 (quoting Cal. Civ. Code § 3344(e)).

[20] Id. at 23.

[21] Id. (quoting Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d 821, 824 n.11 (9th Cir. 1974)).

[22] Id. at 22 (quoting KNB Enters. v. Matthews, 78 Cal. App. 4th 362, 367 (2000)).

[23] Id. at 30 (concluding that “a person-by-person determination as to whether each of the estimated 100,000 putative class members shares a name with a classmate in the same yearbook would not be necessary”).

[24] J.R. Howell, The Interference Fallacy, The Am. Counsel (2026) (proposing the domination test and identifying asymmetry, arbitrariness and standing as its three markers); see generally Philip Pettit, Republicanism: A Theory of Freedom and Government (1997) (defining freedom as the absence of domination); Frank Lovett, A General Theory of Domination and Justice (2010) (defining domination as dependence on arbitrary power).

[25] TransUnion LLC v. Ramirez, 594 U.S. 413, 434 (2021) (holding that class members whose inaccurate credit files were not disclosed to third parties lacked standing to recover damages).

[26] Id. at 431.

[27] Restatement (Second) of Torts § 652C (Am. L. Inst. 1977) (defining the tort of appropriation of name or likeness).

[28] Nolen, slip op. at 42.

[29] Id. at 43 (noting that members with highly valuable likenesses would lose the chance to recover actual damages).

[30] Id. at 42.

[31] Id. at 44 (quoting Slade v. Progressive Sec. Ins. Co., 856 F.3d 408, 413 (5th Cir. 2017)).

[32] Id. at 45 (quoting In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig., 895 F.3d 597, 606 (9th Cir. 2018)).

[33] Fed. R. Civ. P. 23(c)(2)(B)(v) (requiring that notice to a Rule 23(b)(3) class state “that the court will exclude from the class any member who requests exclusion”).

[34] Nolen, slip op. at 48 nn.17-18 (inviting a motion to revise the notice and reserving whether a motion to decertify on the present record would be proper).

[35] Id. at 49.

[36] Id. at 35 n.12 (reserving whether PeopleConnect has a Seventh Amendment right to dispute affidavits attesting to class membership).