SHIBLEY ET AL., APPELLANT, v. TIME, INC. ET AL., APPELLEES

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga 
County

45 Ohio App. 2d 69; 341 N.E.2d 337; 74 Ohio Op. 2d 101; 82 
A.L.R.3d 765

June 19, 1975, Decided


Reporter's Note: A motion to certify the record was
overruled by the Supreme Court of Ohio, December 5, 1975.

Judgment affirmed.

 CORRIGAN, J. KRENZLER, C. J., and PARRINO, J., concur.

CORRIGAN

OPlaintiff, Norman W. Shibley, and intervenor, Joseph Kalk, have 
both filed appeals from the trial court's granting of all 
defendants' motions to dismiss the complaint and crossclaim for 
failure to state a claim upon which relief can be granted.  They 
also appeal a finding by the trial court that this action may not 
be maintained as a class action.  The ruling appealed from is 
reported as Shibley v. Time (1974), 40 Ohio Misc. 51. The appeals 
of plaintiff and intervenor have been consolidated by this court.

   This action originated with the plaintiff's complaint against 
the publishers of Time Magazine, Esquire, Playboy, and Ladies Home 
Journal and against the issuer of American Express credit cards.  
The complaint alleged that the defendants' practice of selling 
subscription lists to direct mail advertising businesses without 
the prior consent of subscribers constituted an invasion of 
privacy and unjust enrichment.  Plaintiff sought certification as 
a class action on behalf of all subscribers, an injunction against 
defendants from selling subscription lists, damages, and costs.  
Intervenor entered this action as a member of the purported class 
seeking to protect the interests of those members who wished to 
waive their privacy right and permit their names to be sold to 
direct mail advertisers.  His cross-claim demanded that defendants 
be required to seek the consent of all subscribers before 
including their names on lists sold to advertisers.  Subsequent to 
the dismissal of all defendants and the denial of a class action 
appellants entered into a settlement with American Express and 
therefore do not appeal the judgment as to that defendant.

   On appeal plaintiff has modified his original position and has 
joined intervenor in demanding that defendants obtain the prior 
consent of subscribers before selling subscription lists.  A 
motion to dismiss the appeal for failure to list assignments of 
error was overruled by this court.  It is clear that this appeal 
consists of two basic issues: "Do the complaint and cross-claim 
state a cause of action?" and "Could this action be maintained as 
a class action?"

   Appellants take the position that an adverse ruling as to the 
first issue makes a ruling on the second issue unnecessary.  We do 
not agree.  Pursuant to App. R. 12(A) this court is under a duty 
to pass upon all errors assigned. Furthermore, should we determine 
that this is properly a class action any future settlements 
between the parties similar to the one entered into by appellants 
and American Express would require approval of the court and 
notice to all members of the class under Civ. R. 23(E).

   I.

   Appellants' argument on appeal is that defendants' practice of 
renting and selling subscription lists constitutes an invasion of 
privacy because it amounts to a sale of individual "personality 
profiles," which subjects the subscribers to solicitations from 
direct mail advertisers.  The reasoning behind this position is 
the contention that the buyers of these lists are able to draw 
certain conclusions about the financial position, social habits, 
and general personality of the persons on the lists by virtue of 
the fact that they subscribe to certain publications and that this 
information is then used in determining the type of advertisement 
to be sent.  This, appellants contend, is an invasion of privacy 
which was not consented to nor made a part of the original 
subscription contract.  The argument then continues that 
defendants have therefore been unjustly enriched at the 
subscribers' expense.

   We cannot agree with appellants that this practice constitutes 
an invasion of privacy and therefore find that the trial court 
correctly granted defendants' motions to dismiss.  Invasion of 
privacy, as it is recognized in Ohio, is defined in the second 
syllabus of Housh v. Peth (1956), 165 Ohio St. 35, as follows:

   "An actionable invasion of the right of privacy is the 
unwarranted appropriation or exploitation of one's personality, 
the publicizing of one's private affairs with which the public has 
no legitimate concern, or the wrongful intrusion into one's 
private activities in such a manner as to outrage or cause mental 
suffering, shame or humiliation to a person of ordinary 
sensibilities."

   Recognizing that their situation does not fall within any 
definition of invasion of privacy as yet propounded, appellants 
nevertheless attempt to bring themselves within Housh v. Peth, 
supra by arguing that defendants' activity constitutes an 
"appropriation of one's personality." It is clear from a reading 
of the authorities dealing with invasion of privacy that the 
"appropriation or exploitation of one's personality" referred to 
in Housh refers to those situations where the plaintiff's name or 
likeness is displayed to the public to indicate that the plaintiff 
indorses the defendant's product or business.  See W. Prosser, Law 
of Torts @ 117 (4th ed. 1971).  The activity complained of here 
does not fall within that classification.

   That defendants' activity does not constitute an invasion of 
privacy is indicated by the fact that the Ohio legislature has 
enacted R. C. 4503.26 permitting the sale of names and addresses 
of registrants of motor vehicles. The present state of the law as 
to the relation between the right of privacy and the practice of 
selling subscription lists to direct mail advertisers is 
summarized in a case challenging the constitutionality of a New 
York statute authorizing the Commissioner of Motor Vehicles to 
sell registration lists. Lamont v. Commissioner of Motor Vehicles 
(1967), 269 F. Supp. 880. In that case the court stated:

   "* * * The mail box, however noxious its advertising contents 
often seem to judges as well as other people, is hardly the kind 
of enclave that requires constitutional defense to protect 'the 
privacies of life.' The short, though regular, journey from mail 
box to trash can * * * is an acceptable    burden, at least so far 
as the Constitution is concerned * * *."

   The right of privacy does not extend to the mailbox and 
therefore it is constitutionally permissible to sell subscription 
lists to direct mail advertisers.  It necessarily follows that the 
practice complained of here does not constitute an invasion of 
privacy even if appellants' unsupported assertion that this 
amounts to the sale of "personality profiles" is taken as true 
because these profiles are only used to determine what type of 
advertisement is to be sent.

   Appellants have requested that this court make new law by 
expanding the present concept of invasion of privacy to include 
the practice complained of here.  It is not within our province to 
create a specific right which is not recognized at common law.  
The forum to which appellants should look is the legislature 
because the appropriate remedy in this situation is the creation 
of a statutory right.  As the trial court noted, the General 
Assembly has acted in the past, and continues to act, in the area 
of sales of names and addresses to direct mail advertisers.  We 
quote from Judge Fink's opinion:

   "The founders of our nation constitutionally set up a 
government composed of three branches -- the legislative, 
executive and judicial.  It is improper for one to invade the 
province of the other.  This is a case peculiarly within the 
province of the legislative branch and it would be improper for 
the judicial branch to usurp the legislative function.  The 
judicial branch may interpret the laws enacted by the legislative 
branch but it may not legislate, and that is what would be 
required if the plaintiff is to succeed here."

   Since appellants base their claim of unjust enrichment upon the 
assumption that defendants have wrongfully appropriated their 
personalities, that claim has no merit there being no such 
wrongful appropriation.  The complaint and cross-claim were 
properly dismissed for failure to state a cause of action.

   II.

   The trial court determined that this action could not be 
maintained as a class action because the mandatory requirements of 
Civ. R. 23(A)(3) and (4) as well as the additional requirement of 
Civ. R. 23(B)(1) had not been satisfied.  In the second portion of 
this appeal it is argued that the court was in error when it 
denied class action status.  We find that the trial court's ruling 
was proper.

   It is a prerequisite to the maintenance of a class action that 
the claims of the parties who seek to represent the class be 
typical of the claims of the class as a whole.  Civ. R. 23 (A)(3).  
Appellants contend that their claim is typical because all they 
claim is a right to consent to the sale of their names. We find 
this approach to be too simplistic and not in conformity with the 
evidence.

   In actuality appellants base their claim upon a right of 
privacy from which they derive this "right of consent." Without 
the privacy right there is no consent requirement.  As the trial 
court noted "[a] privacy claim is a peculiarly personal one." 
Because this right of privacy which is being asserted differs from 
person to person and because the claims of plaintiff and 
intervenor are adverse to each other it cannot be said that 
appellants' claims are typical of the class as a whole.

   In addition the trial court pointed out:

   "Plaintiff Shibley is also not typical of the purported class 
because he is a prominent lawyer, a partner in a distinguished law 
firm, president of the Greater Cleveland Bar Association, and a 
public figure.  It is hornbook law that public figures have a much 
weaker basis for privacy claims than average citizens." 

   For all of the foregoing reasons the court correctly determined 
that the claims of plaintiff and intervenor were not typical of 
the claims of the class as required by Civ. R. 23(A)(3).

   An additional prerequisite to a class action is that the 
representative parties fairly and adequately represent the 
interests of the class.  Civ. R. 23(A)(4).  Appellants argue that 
they can give adequate representation notwithstanding the fact 
that their own law firms are seeking to represent the entire 
class.  It has been consistently held that a potential conflict of 
interest arises and the danger of inadequate  representation is 
created when the representative of the class in a class action 
case is also associated with the attorney for the class.  Berkman 
v. Sinclair Oil Corp. (1973), 59 F. R. D. 602; Shields v. First 
National Bank of Arizona (1972), 56 F. R. D. 442; Kriger v. 
European Health Spa (1972), 56 F. R. D. 104. The explanation for 
this potential conflict of interest is that there exists on the 
part of the representative a temptation to enter into a settlement 
which may be less favorable to the class as a whole but more 
favorable to the representative attorney in terms of attorney's 
fees.  Graybeal v. American Savings & Loan (1973), 59 F. R. D. 7. 
Thus his potential recovery as a class member is far exceeded by 
his financial interest in the legal fees.  Cotchett v. Avis Rent A 
Car (1972), 56 F. R. D. 549. This situation does not comport with 
the high quality of objectivity, duty, and integrity required of 
lawyers. Shields v. Valley National Bank of Arizona (1971), 56 F. 
R. D. 448. For these reasons the court below was not in error in 
determining that appellants could not adequately represent the 
interests of the class as a whole as required by Civ. R. 23(A)(4) 
because they were represented by their own law firms.

   Finally, the trial court found that this action could not be 
maintained as a class action because it did not meet the 
requirements of Civ. R. 23(B)(1) -- the classification 
specifically sought by appellants below.  On appeal it is not 
argued that the court was in error in making that determination.  
Instead appellants now contend that this action meets the 
requirements of Civ. R. 23(B)(3).  That argument is not properly 
before this court.  Issues not raised before the court below 
cannot be raised for the first time on appeal.  Republic Steel v. 
Board of Revision (1963), 175 Ohio St. 179; see also Woelfling v. 
Great West Life Assurance Co. (1972), 30 Ohio App. 2d 211.

   Judgment affirmed.