U.S. News list case battle continues

Folio: The Magazine for Magazine Management, March 15, 1996 by Jenna Schnuer

In a case with major implications for the future of direct mail and database marketing, Ram Avrahami and U.S. News & World Report will have to wait a few more months to see whose interpretation of the law is correct. The reason: A Virginia small-claims court judge recently sidestepped the issue by ruling that it does not fall under her jurisdiction.

[ILLUSTRATION OMITTED]

The dispute started when Avrahami received a direct-mail piece from Smithsonian, which had obtained his name from U.S. News. Avrahami claimed that U.S. News had violated his property rights by selling his name; he filed suit last October in General District Court (Virginia's lowest-level court) seeking $1,100 in damages. In previous cases, plaintiffs have argued that purchasers of lists violated their privacy rights--but those suits have been unsuccessful.

In a decision handed down on February 6, Judge Karen Henenberg ruled that the case involving U.S. News did not fall under her jurisdiction because it called for equitable relief (when the court tells a party how to act), not just monetary relief.

Now, the Arlington County circuit court, hearing U.S. News' motion for declaratory judgment, will decide if the newsweekly violated a Virginia statute that protects individuals from having their names of likenesses used commercially without their consent. To date, that statute has dealt only with the protection of well-known people, and not the regulation of the sale, rental or exchange of mailing lists. A decision is expected June 6.

Avrahami's lawyer, Jonathan Dailey, says a victory for his client would lead to a better relationship between direct marketers and consumers. He suggests that a simple check-off box on subscription forms would allow consumers to decide whether or not they want to be on mailing lists.

A statement from U.S. News quoted outside counsel David Fiske as saying, "We are pleased with the court's decision" and that "we have every confidence that U.S. News will prevail on the merits of the case."