By Gerald L. Maatman, Jennifer A. Riley, Katherine L. Alphonso, and Caitlin Capriotti
Duane Morris Takeaways: On September 24, 2026, in Alicia Nolen v. PeopleConnect, Inc., No. 24-3894, 2026 U.S. App. LEXIS 29276 (9th Cir. Sept. 24, 2026), a panel for the Ninth Circuit, via an opinion written by Judge Marsha S. Berzon, affirmed an order of the U.S. District Court for the Northern District of California that granted certification of injunctive and damages classes as satisfying both the requirements of predominance and adequacy. Predominance can be established by showing that reasonable inferences based on practical assumptions preclude the need for individualized inquiries. Predominance does not require courts to determine an administratively feasible way to identify class members to satisfy class certification. Furthermore, the Ninth Circuit reiterated that class certification issues must be evaluated separately from merits issues. As to adequacy, the Ninth Circuit held that a defendant cannot undermine adequacy by remedying a named plaintiff’s injury after a lawsuit is filed.
Case Background
PeopleConnect, Inc. (“PeopleConnect”) owns and operates Classmates.com, an online library of more than 450,000 digitized yearbooks. Id. at *5. PeopleConnect built its collection by purchasing copies and accepting yearbook donations from individuals and schools. Id. PeopleConnect then scans each page of these acquired yearbooks, making all text searchable, and uploads a copy to Classmates.com, where users can search for and connect with former classmates and/or others. Id. at *5-6. Notably, individuals who donate yearbooks they own fill out a form authorizing PeopleConnect to use their likeness on Classmates.com. Id. at *5.
The lead plaintiff in this case, Alicia Nolen (“Nolen”), is a California resident whose name and photo was featured in at least one yearbook on Classmates.com. Id. at *8. Nolen contends PeopleConnect violated California’s statutory right of publicity, codified in Cal. Civ. Code § 3344, by using individuals’ names, without consent, to advertise paid subscriptions to Classmates.com. Id. at *8-9. At the core of Nolen’s substantive claims is the sequence of subscription advertisements shown to Classmates.com subscribers, wherein visitors do not initially see subscription advertisements when browsing or searching yearbooks, but if a visitor searches for a particular name and clicks on the resulting thumbnail, the website prompts the visitor to register for a free account. Id. at *7. Once the visitor registers, they will immediately receive an advertisement encouraging them to purchase a subscription. Id. Nolen argues that PeopleConnect violated the statute by using name-search results to drive account registrations and subscriptions sales. Id. at *9. In other words, PeopleConnect “commercially used” individuals’ likeness, requiring consent under the statute, when a name and/or thumbnail image became a publicly accessible part of its advertising workflow. Id. at *9-10.
Nolen moved to certify injunctive and damages classes under Fed. Rule of Civ. Proc. 23(b)(2) and 23(b)(3). Id. at *10. The district court certified the classes, and PeopleConnect appealed under Fed. Rule of Civ. Proc. 23(f), arguing questions of law or fact common to class members do not predominate over those common to individual members, and Nolen is not an adequate representative for the purported class. Id. at *10-11.
The Ninth Circuit’s Analysis
Predominance
PeopleConnect argued predominance was not satisfied for three reasons; the Ninth Circuit disagreed on all three grounds. Id. at *13.
First, PeopleConnect argued that the district court misconstrued section 3344 as allowing claims based on the searchability of an individual on the website, whether or not a search has actually been conducted. Id. at *13. It urged the Ninth Circuit to construe section 3344 as only permitting recovery for claimants who have actually been searched, which requires an individualized showing of evidence. Id. The Ninth Circuit held that this issue goes to the merits of the section 3344 claims, not to whether the class can be certified. Id. at *14.
Second, PeopleConnect argued that the district court further misconstrued section 3344 as allowing claimants to obtain a minimum award of statutory damages without presenting individualized evidence of mental anguish or actual economic harm. Id. at *13. The Ninth Circuit disagreed with PeopleConnect, stating that whether class members suffered an economic injury can be determined on a class wide basis based on reasonable inferences from the practical circumstances. Id. at * 24. It is reasonable to assume that PeopleConnect’s use of the name shows that the name has economic value. Id. at * 22-25. It is also reasonable to assume that a person whose likeness a company seeks to use in connection with advertising could negotiate at least a nominal licensing fee for such use. Id. Thus, a plaintiff deprived of such compensation, no matter how small, has suffered an economic injury. Id.
Finally, PeopleConnect argued that the district court did not identify an adequate “winnowing plan” to exclude claimants ineligible for relief. Id. at *13. Specifically, the district court did not come up with a manageable method to weed out individuals who consented to PeopleConnect’s use of their names by registering as Classmates.com members or donating a yearbook, and those whose names are not searchable on the website. Id. at *25-26. However, the Ninth Circuit rejected this argument, finding no basis to reverse certification on predominance or manageability grounds. Id. at *40.
Adequacy
PeopleConnect challenged Nolen’s adequacy as a class representative on the following grounds: (1) her decision to proceed with a “searchable theory of liability” argument would create intraclass conflict by “sacrificing” potentially stronger claims from other purported class members, and (2) Nolen is not similarly situated to other class members because her name is no longer searchable on Classmates.com. Id. at *41. As to the first argument, the Ninth Circuit refused to rule as it was not properly raised on appeal. Id. at *48. The Ninth Circuit did, however, provide guidance should the issue be appropriately raised in the district court. Id. at *41-48. As to the second argument, the Ninth Circuit rejected PeopleConnect contention, explaining, inter alia, it could not “pick off” and moot Nolen’s claims by remediating her injury after she filed suit. Id. at *49-50.
Implications for Employers
This decision underscores the distinction between class certification and merits evaluation—that potentially strong merits defenses may not be enough to defeat class certification when common issues can be resolved through reasonable, class-wide inferences. Each of PeopleConnect’s defense arguments raised interesting issues on the merits but ultimately had no bearing on class certification. Employers should therefore evaluate class-certification exposure independently from the ultimate merits, maintain clear records of consent and authorization for commercial uses of names or likenesses, and assess early whether uniform practices could support class-wide proof. This decision also cautions that post-suit remediation directed at the named plaintiff generally will not defeat adequacy or moot the action, making proactive compliance and early risk assessment critical.