Gabiola et al v. Keesee et al

Filing 101

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 9/26/2017:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PETER GABIOLA, ANTONIO HAMMOND,
and JIMMY THOMPSON, on behalf of
themselves and all other similarly situated
individuals,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
SAHAR SARID, individually and a/k/a
)
“Michael Robertson,” THOMAS KEESEE,
)
MARC GARY EPSTEIN, MUGSHOTS.COM, )
LLC, a Delaware Limited Liability Company,
)
UNPUBLISH, LLC, a Florida Limited Liability )
Company, UNPUBLISH, LLC, a Wyoming
)
Limited Liability Company, HAMMERMILL & )
MASTERSON LLC d/b/a
)
“Unpublisharrest.com,” “Mugshots.com,” and
“unpublishingpartners.com,” a Wyoming Limited )
Liability Company, HAMMERMILL &
)
MASTERSON LLC d/b/a
)
“Unpublisharrest.com,” “Mugshots.com,” and
“unpublishingpartners.com,” a Florida Limited )
Liability Company,
)
)
Defendants.
)

Case No. 16-cv-02076
Judge Sharon Johnson Coleman

)

)

MEMORANDUM OPINION AND ORDER
Plaintiffs, Peter Gabiola, Antonio Hammond, and Jimmy Thompson, filed a nine count First
Amended Complaint, alleging claims under federal, Illinois, and Florida law for violations of their
right of publicity, consumer fraud, fair credit reporting, and extortion [60]. Defendants, Thomas
Keesee, Marc Gary Epstein, and Hammermill & Masterson LLC, filed a motion to dismiss pursuant
to Federal Rule of 12(b)(6) for failure to state a claim [67]. Defendant Sahar Sarid, joined in
defendants’ motion and separately filed a motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim [84]. For the reasons stated herein, the Court grants in part and denies in part the
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motions.
Background
Plaintiff Peter Gabiola was an Illinois resident 1 and a former inmate in the Illinois
Department of Corrections. Plaintiff Antonio Hammond is an Illinois resident and a former inmate
in the Illinois Department of Corrections. Plaintiff Jimmy Thompson is a resident of Florida. In
October 2003, he was arrested by the Orange County Sheriff’s Department during a traffic stop and
detained for eight days on charges of check fraud. Once the Hillsborough County State’s Attorney
discovered that they had charged the wrong Jimmy Thompson, the charges were dismissed and
Thompson was released from custody. Thompson learned that the record from that false arrest was
posted on “Mugshots.com.”
Defendant Sahar Sarid is a resident of Florida and the owner of the websites at issue,
“Mugshots.com” and “Unpublisharrest.com.” Defendant Mugshots.com LLC is a limited liability
company in Delaware. As of June 23, 2016, Mugshots.com was no longer in good standing in the
State of Delaware. Sarid is also the owner of Unpublish LLC, which purports to be a limited liability
company organized under the laws of the island of Nevis in the West Indies. Unpublish LLC also
purports to be a Florida limited liability company with its principal place of business in Florida.
Unpublish LLC also purports to be a Wyoming limited liability company with its principal place of
business in Minnesota. Both Florida and Wyoming revoked Unpublish’s registration in 2015. Public
records indicate that Unpublish LLC continues to operate in Florida. The Unpublish entities purport
to be a licensee for an internet-based reputation management service.
Defendant Marc Gary Epstein is a Florida resident. Epstein was sole manager or member of
the Unpublish LLC. Epstein is also the alleged owner of Unpublish LLC. Defendant Hammermill &
Masterson LLC owned or controlled Unpublish LLC. Hammermill & Masterson LLC purports to
1

Gabiola is currently a Nebraska resident.

2

be a Wyoming limited liability company with its principal place of business in Florida. It also
purports to be a Florida limited liability company with its principal place of business in Florida.
Defendant Thomas Keesee is the sole member and manager of Hammermill & Masterson LLC.
Keesee is a resident of Florida. Hammermill & Masterson allegedly operates the Mugshots.com
website. Several non-party companies formed by Sarid are listed as owners of Mugshots.com on the
website.
The websites Unpublisharrest.com and Unpublishingpartners.com are hosted and or
registered to an address in Fort Lauderdale, Florida. The complaint alleges on information and belief
that one or more of the LLC defendants are alter egos of the individual defendants with no
independent assets, offices, or employees. Sarid and Keesee operate Mugshots.com,
Unpublisharrest.com, and Unpublishingpartners.com from Florida. The complaint alleges that the
websites are a single enterprise. The complaint alleges that Sarid orchestrated a fake sale of the
website to a fabricated individual named “Michael Robertson” to conceal his ownership of the
website.
I. Mugshots.com
In 2008, Sarid created Mugshots.com, a searchable online database of arrest record
information complete with photographs (“mugshots”) when they are available. Mugshots.com
obtains its content from two sources. First, it uses software to copy the information publicly
available on the websites for departments of corrections. In Illinois, for example, the Illinois
Department of Corrections “IDOC” posts public records of inmates to the IDOC website while the
individual is incarcerated or on supervised release. The second source of records for the website is
the filing of Freedom of Information Action (“FOIA”) requests for inmate and arrest records from
public databases maintained by the government. The complaint alleges on information and belief
that Sarid or his employees do not indicate that they are requesting the records for a commercial
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purpose. Sarid does not update the information, photos, or records posted on Mugshots.com. Sarid
makes little or no effort to confirm the accuracy of the information. Mugshots.com represents that it
may remove the records and pictures of persons who are exonerated. Mugshots.com also allegedly
contains links stating “Get Full Criminal Profile,” and “Get Criminal Background Checks”.
Mugshots.com contains the following disclaimer:
DISCLAIMER NOTICE: ALL ARE PRESUMED INNOCENT UNTIL PROVEN
GUILTY IN A COURT OF LAW. PUBLISHED MUGSHOTS AND/OR ARREST
RECORDS ARE PREVIOUSLY PUBLISHED PUBLIC RECORDS OF: AN
ARREST, A REGISTRATION, THE DEPRIVATION OF LIBERTY OR A
DETENTION. THE MUGSHOTS AND/OR ARREST RECORDS PUBLISHED
ON MUGSHOTS.COM ARE IN NO WAY AN INDICATION OF GUILT AND
THEY ARE NOT EVIDENCE THAT AN ACTUAL CRIME HAS BEEN
COMMITTED. EVERY EFFORT IS MADE TO ENSURE THE ACCURACY OF
INFORMATION
POSTED
ON
THIS
WEBSITE.
HOWEVER,
MUGSHOTS.COM DOES NOT GUARANTEE THE ACCURACY OR
TIMELINESS OF THE CONTENT OF THIS WEBSITE. IN ADDITION
NAMES MAY BE SIMILAR OR IDENTICAL TO OTHER INDIVIDUALS. FOR
LATEST CASE STATUS, CONTACT THE OFFICIAL LAW ENFORCEMENT
AGENCY WHICH ORIGINALLY RELEASED THE INFORMATION.
UNPUBLISHING NOTICE: IF YOU WERE FOUND GUILTY; YOU STILL
MAY QUALIFY TO BE UNPUBLISHED.
II. Unpublisharrest.com
In 2011, Sarid created a service to monetize the removal of arrest records from
Mugshots.com – a “takedown service.” Several reputation management entities pre-dated the
defendant website Unpublisharrest.com, which was created in 2012. Plaintiffs allege that they are not
separate entities because Sarid owns both websites and they work together to generate revenue.
Unpublisharrest.com offers a service to remove the records only from Mugshots.com for a fee. The
sole purpose of Unpublisharrest.com is to operate as a portal for payments to the removal service.
There are advertisements on Mugshots.com record pages promoting Unpublisharrest.com
and links to a checkout page enumerating the tiers of pricing for the removal service. In some
instances, a record page on Mugshots.com has as many as three advertisements for or links to
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Unpublisharrest.com. The Unpublisharrest.com website has a disclaimer that payment does not
guarantee removal of a record or photograph. It further states: “LICENSOR RESERVES THE
RIGHT TO APPROVE OR DECLINE ANY APPLICATION IN ITS SOLE DISCRETION.”
The removal service on Unpublisharrest.com earns substantially more revenue than Mugshots.com
does from advertising. The complaint alleges that defendants deliberately fail to update or correct
inaccurate or out of date records to incentivize the use of the removal service.
III. Individual Plaintiffs
When Gabiola completed his sentence, IDOC removed Gabiola from its public website.
Gabiola alleges that the Mugshots.com profile was last updated on October 11, 2013, but it does not
state that he had completed his sentence prior to that date. Gabiola alleges that he lost his job after
co-workers found the Mugshots.com profile. He further alleges that he has had other offers of
employment rescinded based on prospective employers seeing the Mugshots.com profile. On
October 10, 2014, Gabiola called the Unpublisharrest.com toll-free number. The telephone
representative informed Gabiola that removing the two images from the Mugshots.com website
would cost $2,000 plus a representation fee. Removal of the entire profile would be $15,000 and a
representation fee. The representative further stated that payment did not guarantee removal of the
profile.
Plaintiff Hammond has five arrest pages on Mugshots.com. Some or all the information
posted on Mugshots.com about Hammond’s criminal history is inaccurate. Hammond is currently
unemployed and his sole source of income is disability benefit payments. Hammond claims that he
is unable to obtain long-term employment due to the profiles on Mugshots.com. Hammond’s
financial situation prevents him from paying for the removal service offered by
Unpublisharrest.com.
Plaintiff Thompson learned in September 2012 that a record from his false arrest for check
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fraud appears on Mugshots.com. Thompson’s arrest record was posted after the charges were
dismissed. The posting does not state that he was erroneously arrested. Thompson called
Unpublisharrest.com to request removal of the arrest report. He was informed that it would cost
$399 for removal or correction of the report. Thompson continued to call Unpublisharrest.com and
was repeatedly told that the cost of removal is $399. He further alleges that he has applied for, and
been rejected from, approximately forty jobs between September 2012 and the beginning of 2016.
The nine-count First Amended Complaint alleges: (1) Count I on behalf of Gabiola for
violation of the Illinois Right of Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq.; (2) Count II on
behalf of Gabiola and Hammond for violations of the Illinois Consumer Fraud Act (“ICFA”), 815
ILCS 505/1 et seq.; (3) Count III on behalf of Gabiola and Hammond for violations of the Illinois
Mugshots Act, 815 ILCS 505/2QQQ; (4) Count [IV] 2 on behalf of Gabiola and Thompson for
violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 U.S.C §1961 et
seq.; (5) Count [V] on behalf of all plaintiffs for violations of the Federal Fair Credit Reporting Act
(“FCRA”); (6) Count VI on behalf of all plaintiffs for violations of the disclosure provisions of the
FCRA; (7) Count VII on behalf of Thompson and Gabiola for violations of the accuracy
requirements of the FCRA; (8) Count VIII on behalf of Thompson for violations of the Florida
Right of Publicity Act (“FRPA”), Fla. Stat. §540.08; (9) Count IX on behalf of Thompson for
violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §501.204
et seq.
Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its
merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When
considering the motion, the Court accepts as true all well pleaded facts in the plaintiff’s complaint
The First Amended Complaint does not contain a Count IV, but includes two Count VIs. For clarity, this Court has
renumbered the Counts consecutively.

2

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and draws all reasonable inferences from those facts in the plaintiff’s favor. AnchorBank, FSB v.
Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive dismissal, the complaint must not only provide
the defendant with fair notice of a claim’s basis, but must also be facially plausible. Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007).
Discussion
Defendants Thomas Keesee, Marc Gary Epstein, and Hammermill & Masterson, filed a
motion to dismiss the First Amended Complaint in its entirety, arguing that the alleged conduct is
protected by the First Amendment to the United States Constitution. They also move to dismiss the
right of publicity claims because neither Illinois nor Florida requires permission or authorization to
speak on matters of public concern, arrest photos are exempt from liability, and the photos are not
directly being used to promote a product or service. The consumer fraud claims fail, according to
defendants, because the plaintiffs have not alleged actual damages from an unlawful act. Lastly, the
defendants contend that the RICO claims fail as a matter of law because plaintiffs have not suffered
an injury under RICO.
Defendant Sarid joined in his co-defendants motion, and separately moves to dismiss,
arguing that plaintiffs have not alleged facts demonstrating that any of the defendants are a
“consumer reporting agency” within the meaning of the Fair Credit Reporting Act. 3 Additionally,
Sarid argues that Thompson’s claims under the Florida Deceptive and Unfair Trade Practices Act
and the Florida Right of Publicity Act are barred by the statute of limitations.
1. Statute of Limitations: Thompson

3 The United States initially intervened in this action to defend the constitutionality of the Fair Credit Reporting Act,
during briefing it became clear that defendants were not arguing that the FCRA violates the First Amendment. Instead,
defendants are asserting that the FCRA does not apply to defendants. The United States is not weighing in on whether
the FCRA governs defendants conduct on these facts. However, the United States requests the Court find that the
factual record needs to be developed prior to decided that it simply does not apply.

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Defendant Sarid argues that Thompson’s claims under Florida law are time-barred. The
statute of limitations for claims under both the FRPA and the FDUTPA is four years. See Fla. Stat. §
95.11(3)(f) and Putnam Berkeley Group, Inc. v. Dinin, 734 So.2d 532, 536 (Fla. 4th DCA 1999). The
discovery rule does not delay the accrual of either cause of action. Id. Plaintiffs allege in the First
Amended Complaint that Thompson discovered his arrest record on Mugshots.com in September
2012, Dkt. 60 at ¶387. However, in briefing the motions at issue, plaintiffs admit in that
“Thompson’s injury accrued over seven years ago[.]” Dkt. 73, Pls’ Resp. to Defs’ Motion to Dismiss,
at 17. Plaintiffs argue that this Court should overlook the admission and find that because Sarid
allegedly concealed the identity of the website’s owner to avoid suit that he is equitably estopped
from raising this defense now. These allegations arguably allow for equitable tolling. See Fla. Dep’t of
Health & Rehabilitation Servs. v. S.A.P., 835 So.2d 1091, 1097-98, 27 Fla. L. Weekly 980 (2002)
(holding that equitable estoppel “presupposes an act of wrongdoing – such as fraud and
concealment – that prejudices a party’s case[.]”). Sarid’s motion is denied without prejudice on this
point. Plaintiff is cautioned to plead and argue carefully.
2. First Amendment
Defendants contend that the First Amendment provides a complete defense to all claims in
this suit. Plaintiffs assert that the defendants’ use of their mugshots and arrest records is commercial
speech that does warrant First Amendment protection. The United States Supreme Court has
provided this basic definition: Commercial speech is “speech that proposes a commercial
transaction.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482, 109 S.Ct. 3028, 106 L.Ed.2d
388 (1989). This definition is only an analytical starting point. “[C]ommunications also may
‘constitute commercial speech notwithstanding the fact that they contain discussions of important
public issues’.” Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 516 (7th Cir. 2014) (quoting Fox, 492
U.S. at 475). Courts consider several factors when determining whether speech is commercial,
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including: (1) if it is an advertisement; (2) if the speech refers to a specific product or service; and (3)
the speaker has an economic motivation for the speech. U.S. v. Benson, 561 F.3d 718, 725 (7th Cir.
2009) (interpreting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-7, 105 S.Ct. 2875, 77 L.Ed.2d
469 (1983).
Here, taking the well-pleaded facts as true and resolving all reasonable inferences in favor of
plaintiff, this Court cannot say that the websites at issue are non-commercial speech as a matter of
law. As pleaded, the use of the arrest photos and records in conjunction with what appear in the
complaint as buttons linking to a removal service are reasonably construed as proposing a
commercial transaction. The First Amended Complaint alleges that the profiles on Mugshots.com
contained links stating “Unpublish Mugshot,” in bold typeface at the top of every page and
additional links also in large bold red typeface stating “Click Here for Unpublishing or Call 1-800810-3965”. Visitors that click on the links are taken directly to a checkout page, offering removal
services for a fee. On these facts, the arrest photos and records coupled with clear invitation to
removal create the appearance that they operate in concert to sell the removal service and generate
revenue. Defendants’ assertion that Mugshots.com and the removal service at Unpublisharrest.com
are completely separate is belied by the structure of the Mugshots.com site and the corporate
structure alleged in the complaint. As described in the complaint, the arrest profiles are designed to
coerce plaintiffs to pay for removal. In other words, the mugshots themselves are advertisements for
the removal service, which is the far more lucrative enterprise.
Defendants argue that this Court should follow Nieman v. Versuslaw, 512 Fed.Appx. 635 (7th
Cir. 2013). In that non-precedential order, the plaintiff sued a legal-search website that provides
public access to records of judicial decisions for a fee. The Seventh Circuit Court of Appeals
affirmed dismissal of the case, finding that “[t]he First Amendment privileges the publication of
facts contained in lawfully obtained judicial records, even if reasonable people would want them
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concealed.” Id. at 637. In Nieman, however, the plaintiff did not argue that the records themselves
were used in such a way as to render them commercial speech. The profiteering in that case came
from the fee to access the records rather than using the records to generate revenue for a service as
is the case here. Thus, the court in Nieman had no opportunity to consider the question before this
Court.
Vrdolyak v. Avvo, Inc., 206 F.Supp.3d 1384 (N.D. Ill. 2016) (Gettleman, J.), is instructive
though distinguishable from the case at bar. There, as here, the plaintiff brought a putative class
action alleging that the defendant violates the Illinois Right of Publicity Act by using the plaintiff’s
identity for commercial purposes without his consent. Id. at 1385. The defendant website Avvo.com
promotes certain legal services and publishes a directory of attorneys at no charge to the attorney
but without their consent. There is also no fee for consumers to view attorney profiles and search
listings. According to the plaintiff, Avvo.com generates revenue primarily by selling advertising to
lawyers. “Avvo Advertising” allows an attorney to purchase advertising and define the audience for
their ads. Id. at 1386. Lawyers who pay for this type of advertising have a link to their profile
displayed as a “Sponsored Listing” on the profile pages of attorneys who have not paid for any
advertising service from Avvo.com, but practice in the same geographic and field as the “Sponsored
Listing.” For an additional fee, attorneys can join “Avvo Pro” which guarantees them that no
“Sponsored Listings” or other advertising will appear on their profile page. Id. While the court
concluded that the “Sponsored Listings” did not convert the entire directory into commercial
speech and thus the defendant’s publications were fully protected by the First Amendment, there are
important distinctions.
Avvo.com argued that its attorney directory is simply a digital version of the yellow pages –
it posts truthful information from public records with advertising appearing with the attorney
profiles. The court agreed with Avvo.com because not every attorney profile contains an
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advertisement and none of the advertisements include the profiled attorney’s name. Thus, the court
concluded that the publication was fully protected by the First Amendment because “to hold
otherwise would lead to the unintended result that any entity that publishes truthful newsworthy
information about individuals such as teachers, directors and other professionals, such as a
newspaper or yellow page directory, would risk civil liability simply because it generated revenue
from advertisements placed by others in the same field.” Id. at 1388.
Here, unlike in Vrdolyak, plaintiffs are arguing that their arrest photos and reports – their
profiles – work together with links directly to the checkout page for the removal service as
advertisements. Vrdolyak is also distinguishable in that the advertisements there were for other
services separate from Avvo.com and the plaintiff was complaining that competitors could post on
his profile unless he paid Avvo.com for an exclusive page with no advertising. That scenario is more
akin to a yellow pages directory, than here where the profile itself is used to promote the removal
service, which generates revenue for defendants. Accordingly, as noted above this Court is
unpersuaded that the websites at issue are entitled to complete protection of the First Amendment
as a matter of law.
3. Right of Publicity
The Court now turns to the legal sufficiency of the claims in the First Amended Complaint.
Defendants argue that plaintiffs’ claims under Illinois and Florida Right to Publicity statutes fail as a
matter of law because defendants do not need permission or authorization to republish matters
contained in a public record. In Illinois to state a claim under the IRPA, the plaintiffs must allege: (1)
the use of their identities; (2) for commercial purposes; and (3) without consent. 765 ILCS 1075/30;
Vrdolyak v. Avvo, Inc., 206 F.Supp.3d 1384, 1386 (N.D. Ill. 2016); Best v. Berard, 776 F.Supp.2d 752,
756 (N.D. Ill. 2011). IRPA defines a commercial purpose as “the public use or holding out of an
individual’s identity (i) on or in connection with the offering for sale or sale of a product,
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merchandise, goods, or services; (ii) for purposes of advertising or promoting products,
merchandise, goods, or services; or (iii) for the purpose of fundraising.” 765 ILCS 1075/5. IPRA
exempts from liability the “use of an individual’s identity for non-commercial purposes, including
any news, public affairs, or sports broadcast or account, or any political campaign.” 765 ILCS
1075/35(b)(2).
Florida law is essentially the same. Pursuant to Florida Statute §540.08: “No person shall
publish, print, display or otherwise publicly use for purposes of trade or for any commercial or
advertising purpose the name, portrait, photograph, or other likeness of any natural person without
the express written or oral consent…”. Fla. Stat. §540.08(1). Like its Illinois counterpart, the Florida
statute contains a public interest exception, which states:
The provisions of this section shall not apply to: (a) The publication, printing,
display, or use of the name or likeness of any person in any newspaper, magazine,
book, news broadcast or telecast, or other news medium or publication as part of
any bona fide news report or presentation having a current and legitimate public
interest and where such name or likeness is not used for advertising purposes[.]
Fla. Stat. §540.08(3)(a).
It is not advertising use in the traditional sense, but Mugshots.com promotes itself with
plaintiffs’ likenesses (and others), by using the embarrassing nature of an arrest to promote the
website, draw consumers, and if it is their photo or likeness, provide an easy link to removal for a
fee. There are no allegations in the complaint to suggest that any of these plaintiffs provided
consent. Plaintiffs here clearly allege that defendants are using their likenesses, in the form of arrest
photographs, without their consent to solicit enrollment in the subscription removal service.
Defendants argue that these claims fall under the public interest exception. As discussed
above, however, this Court is not inclined to find on the facts presented that the plaintiffs likenesses
are not used for advertising purposes as a matter of law. Defendants’ argument is unavailing at this
stage. Mugshots.com is not a traditional news outlet and, based on the complaint, generates very
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little revenue, but its alleged companion website generates substantial revenue through the profile
removal service. As pleaded, the factual allegations support an inference that everything, including
the articles on the Mugshots.com are click-bait to increase consumers and to embarrass the profiled
arrestees and in turn to drive revenue to the removal service.
The instant case is distinguishable from Best v. Berard, 776 F.Supp.2d 752 (2011). In that case,
Judge Kennelly was presented with a plaintiff who was featured on a “reality” television show that
followed female police officers on duty and recorded their encounters with individuals for
broadcast. The plaintiff refused to sign a consent waiver but her encounter with police was aired
anyway. The defendants argued that it was a matter of public concern and therefore came under the
exception to the Right of Publicity statute. The court, citing Cox Broad. Corp. v. Cohn, 420 U.S. 469,
492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), began with the proposition that “[t]he commission of
crime, prosecutions resulting from it, and judicial proceedings arising from the prosecution are
without question events of legitimate concern to the public.” Best, 776 F.Supp.2d at 757. The court
further concluded that arrests are included in that same category.
After consideration, the court found that the reality program’s status as entertainment, and
not pure news, did not alter the First Amendment analysis. The court ultimately found that the claim
at issue was properly within the exception to the right of publicity. The court held that the noncommercial news exception “reasonably may be interpreted to cover the use of Best’s identity in an
entertainment program that conveys truthful footage of an arrest and thus implicates matters of
public concern.” Id. at 759. The significant difference between that case and the one at bar is that in
this case there is a much greater integration of the commercial elements and a reduced proportion of
newsworthiness. Here, the purpose is of presenting the arrest profiles appears to be to embarrass,
shame, and coerce payment to remove them from the public sphere. In Best, the use of the plaintiff’s
likeness was as part of a whole production, that while profit earning through the sale of
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advertisement, could not itself be interpreted to be the advertisement. Thus, this Court finds Best
inapposite.
In Bilotta v. Citizens Information Associates, LLC, 2014 WL 105177 (M.D. Fla. Jan. 10, 2014)4,
the district court for the Middle District of Florida considered a nearly identical case, where the
plaintiff complained that the website justMugshots.com and mugshots.mobi that linked to fee-based
unpublishing services violated Florida’s right of publicity statute. In that case, the court rejected the
defendant’s claim that publication of the mug shot was protected under the First Amendment. The
court further found that dismissal was not warranted under Federal Rule 12(b)(6) because the
plaintiff had sufficiently alleged the use of her likeness (a mugshot) for commercial purposes (the
removal of the arrest photo for a fee) to state a claim under the Florida right of publicity statute.
This Court also finds that plaintiffs have stated a claim under the state right of publicity statutes.
4. Consumer Fraud
Defendants argue that plaintiffs fail to state consumer fraud claims under the Illinois
Consumer Fraud Act and the Florida Deceptive and Unfair Trade Practices Act because plaintiffs
fail to allege actual damages. Under Illinois law, plaintiffs’ claims are two-fold; first, plaintiffs
Gabiola and Hammond allege violations of the ICFA in Count II and, second they allege violations
of the Mugshots Act in Count III. Plaintiffs appear to abandon Count II in their responses in
opposition to defendants’ motions to dismiss they do not argue that they have stated a claim under
the ICFA. Plaintiffs only argue that they have stated a viable claim under provisions of the Mugshots
Act. Dkt. 73 at 13.
The Mugshots Act specifically excludes the publication and dissemination of criminal record
information from prohibition and thus it avoids the First Amendment. The Mugshots Act provides
in relevant part: “It is an unlawful practice for any person engaged in publishing or otherwise
Despite plaintiff’s assertion that Bilotta is “published,” it is not reported in the Federal Supplement reporter, but does
appear on Westlaw.

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disseminating criminal record information through a print or electronic medium to solicit or accept
the payment of a fee or other consideration to remove, correct or modify said criminal record
information.” 815 ILCS 505/2QQQ(a). Photos taken pursuant to arrest are included in the
definition of criminal record information. Id. at §505/2QQQ(b)(2).
Defendants argue that the Illinois plaintiffs’ claim under the Mugshots Act fails as a matter
of law because the plaintiffs have not alleged actual damages in the form of pecuniary loss.
However, defendants have not demonstrated that the actual damages requirement for other portions
of the ICFA applies to the Mugshots Act. The plain language of this provision suggests a violation
occurs by the mere solicitation of payment. This Court agrees with the State of Illinois as intervenor
that the defendants’ use of plaintiffs’ criminal record information places plaintiffs’ in the position of
choosing to pay removal fees or suffer ongoing reputational losses causing financial hardship by
limiting employment opportunities. Thus, this Court finds that plaintiffs have adequately stated a
claim under the Mugshots Act.
With respect to Thompson’s claim under the FDUTPA, defendants also argue that he must
have suffered “actual damages” to recover under the Act. It is clear that Thompson cannot recover
actual damages to compensate for a pecuniary loss under Florida law because he did not pay for
removal. See, e.g., Kelly v. Palmer, Reiffer & Associates, P.A., 681 F.Supp.2d 1356, 1366-67 (S.D. Fla.
2010) (distinguishing requirements for a claim of damages and claims for injunctive relief under the
FDUTPA). Defendants also assert that Thompson cannot seek injunctive relief because he is not an
“aggrieved person” since his arrest record has been removed from Mugshots.com. However,
“[v]oluntary cessation of allegedly offensive conduct moots a claim only ‘if it is clear that the
defendant has not changed course simply to deprive the court of jurisdiction.” Id. at 1365 (quoting
Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005)). The complaint here
alleges that defendants removed Thompson’s record and photo from their website after he appeared
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in a documentary regarding the websites at issue. Thompson alleges the he applied for over forty
jobs between 2012 and 2016 and was rejected from each. Thus, this Court finds that Thompson has
sufficiently alleged that he is an aggrieved person. Cf. Klinger v. Weekly World News, Inc., 747 F. Supp.
1477, 1480 (S.D. Fla. 1990) (“A professional writer’s loss of his ability to publish clearly constitutes
an injury sufficient to permit him to resort to the injunctive remedies of the statute.”)
5. Federal Claims: FCRA and RICO
Plaintiffs allege that defendants violate several requirements of the Federal Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. §1681(a). Plaintiffs assert that the information published on
Mugshots.com qualifies as a “consumer report” as it is defined in the FCRA. Further, plaintiffs
argue that defendants are subject to the FCRA because Mugshots.com regularly assembles or
evaluates consumers for the purpose of providing reports to third parties for fees, i.e. as criminal
background checks. In addition to their blanket argument that their activity is protected by the First
Amendment, defendants argue that plaintiffs’ injuries are reputational and caused solely by the republication of public arrest reports.
The United States intervened to assert that the constitution is not implicated in the FCRA
claims presented here. The United States notes that the FCRA provisions relied on by plaintiffs do
not prohibit defendants from collecting and publishing arrest records or other information as a
consumer report. The FCRA sections, 1681b(b), 1681e(b) and (d), merely require Mugshots.com to
follow certain procedures, for notice and accuracy, to ensure that the information is not misused.
This Court agrees with the United States that the First Amendment is not implicated here because
the provisions on which plaintiffs rely do not prohibit or penalize the dissemination of truthful
information.
Defendants’ conduct may be construed as “consumer reports” because the arrest records
that Mugshots.com distributes may be information “bearing on a consumer’s… character, general
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reputation, personal characteristics, or mode of living.” 15 U.S.C. § 1681a(d). However, the FCRA
only applies to “consumer reporting agencies,” defined in that Act as:
[A]ny person which, for monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of assembling or evaluating
consumer credit information or other information on consumers for the purpose of
furnishing consumer reports to third parties, and which uses any means or facility of
interstate commerce for the purpose of preparing or furnishing consumer reports.
15 U.S.C. § 1681a(f). Here, plaintiffs allege that defendants’ promote the use of Mugshots.com to do
background checks for purposes of employment or personal security. However, there are no
allegations in the complaint that defendants compile the arrest reports to sell to third parties.
Plaintiffs argue that the fee-based removal service marketed to individuals whose arrest records
appear on the site satisfies the statutory definition. This Court disagrees. The plain language of the
statutory definition set forth above does not contemplate charging a fee for the removal of a public
record report provided for free online. The allegations in the complaint do not support a conclusion
that defendants fit the definition of a “consumer reporting agency” in the manner in which plaintiffs
allege defendants monetize their arrest records.
Lastly, defendants argue that plaintiffs’ Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. §1962 (“RICO”) claims fail as a matter of law because RICO only covers pre-publication
extortion and threats, and plaintiffs must have suffered a concrete financial loss proximately caused
by defendants’ actions. Plaintiffs contend that extortion under Illinois and Florida law constitutes
the “racketeering activity” that is the predicate for their RICO claims. Illinois law defines
“intimidation” as the threat to “[e]xpose any person to hatred, contempt, or ridicule.” 720 ILCS
5/12-6(a)(5). “Implicit in the word ‘threat’ as it is used in the intimidation statute is the requirement
that the expression in its context have a reasonable tendency to create apprehension that its
originator will act according to its tenor.” People v. Maldonado, 247 Ill. App. 3d 149, 153–54, 617
N.E.2d 236, 239 (1993). Similarly, Florida law defines “extortion” as “either verbally or by a written
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or printed communication, maliciously threaten[ing] to… expose another to disgrace, or to expose
any secret affecting another… with intent thereby to extort money or any pecuniary advantage
whatsoever.” Fla. Stat. Ann. § 836.05. The problem here is plaintiffs are not threatened with
exposure because the arrest records are already published. While potentially embarrassing, they are
public records protected by the First Amendment and plaintiffs do not meaningfully challenge the
defendants’ ability to re-publish truthful arrest records. The allegations claim that defendants are
essentially threatening not to remove them unless plaintiffs pay a fee, which plaintiffs have refused
to do. Those allegations simply do not fit the parameters of either statute. Accordingly, this Court
dismisses Count IV alleging violations of RICO.
Conclusion
Based on the foregoing discussion, this Court grants in part and denies in part defendants’
motions to dismiss [67, 84]. The motions are granted on Counts II, IV, V, VI, VII, and denied on
Counts I, III, VIII, and IX.
IT IS SO ORDERED.
Date: September 26, 2017

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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