Lightbourne v. CBS Interactive, et al.

A judge in the US District Court for the Central District of California denied a motion for class certification in a landmark right of publicity case brought by student-athletes against CBS Interactive Inc. (CBSI) and other defendants. The plaintiff alleged that CBSI had used student-athletes' names, images, and likenesses without their consent. The plaintiff asked the Court to certify a nationwide class of current and former student-athletes, and sought statutory damages under California's right of publicity statute.

CBSI retained Analysis Group affiliate Catherine Tucker, the Sloan Distinguished Professor of Management and Professor of Marketing at the Sloan School of Management at the Massachusetts Institute of Technology. Professor Tucker, supported by an Analysis Group team including CEO and Chairman Martha Samuelson and Managing Principals Aaron Yeater and Emily Cotton, worked with attorneys from Weil, Gotshal & Manges LLP, counsel for CBSI, to provide expert analysis and opinions on topics critical to CBSI's successful challenge to certification of the class. Professor Tucker drew on her research as to how the “big data” generated by new technologies affects customers and guides marketing and business decisions, and demonstrated several dimensions on which the proposed class would not meet the requirements for class certification. Professor Tucker's analyses focused, in part, on whether the members of the proposed class were in fact injured by the conduct, and whether class-wide inquiry could demonstrate that injury and damages.

After expert-related class discovery and class certification briefing and argument, Judge Josephine L. Staton denied certification in its entirety. Judge Staton concluded that class certification was improper in part because CBSI had shown that “[t]his case presents a slew of individual questions and affirmative defenses that would need to be litigated for each image and student-athlete” that “clearly predominate over the common issues present in this action.” Judge Staton further opined that a class action was not a superior way to proceed because the case would be “totally unmanageable” as “even determining CBSI's liability would require hundreds of mini-trials into the issues of consent and damages.” 

The Court subsequently disposed of all of the remaining claims against CBSI when it granted CBSI's motion for summary judgment.