Nolen v. Peopleconnect, Inc.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALICIA NOLEN, No. 24-3894 D.C. No. Plaintiff - Appellee, 3:20-cv-09203- EMC v. PEOPLECONNECT, INC., OPINION Defendant - Appellant. Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding Argued and Submitted May 23, 2025 Submission Withdrawn July 18, 2025 Resubmitted September 24, 2026 San Francisco, California Filed September 24, 2026 Before: Marsha S. Berzon, Michelle T. Friedland, and Salvador Mendoza, Jr., Circuit Judges. Opinion by Judge Berzon 2 NOLEN V. PEOPLECONNECT, INC. SUMMARY * Class Certification The panel affirmed the district court’s order certifying damages and injunctive classes of individuals whose names PeopleConnect, Inc., the operator of an online library of digitized yearbooks known as Classmates.com, allegedly used in violation of California’s right-of-publicity statute, Cal. Civ. Code § 3344. PeopleConnect challenged the district court’s certification order on a host of grounds, falling into two categories: first, that common questions of law or fact do not predominate over individual ones, see Fed. R. Civ. P. 23(b)(3); and second, that the lead plaintiff, Alicia Nolen, will not adequately represent the classes, see Fed. R. Civ. P. 23(a)(4). The panel held that predominance was satisfied on the record. First, the panel rejected PeopleConnect’s argument that a putative class member does not have a viable §3344 claim absent proof that he or she has actually been searched on Classmates.com, because it goes to the merits of the class’s § 3344 claims, not to whether the class can be certified. Second, the panel rejected PeopleConnect’s contention that § 3344 requires individualized evidence of injury, because here with respect to class certification, the lead plaintiff has shown that the injury element can be adjudicated without undermining predominance. Third, the panel rejected PeopleConnect’s argument that predominance * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  NOLEN V. PEOPLECONNECT, INC. 3 was not met where the district court did not identify a “workable winnowing plan” to identify class members not entitled to relief. Applying the proper Rule 23 criteria to the record, the panel could not say that the district court abused its discretion by holding that none of PeopleConnect’s four “winnowing plan” arguments defeated certification. In sum, the panel found no basis to reverse certification of the damages class on predominance or manageability grounds. The panel rejected PeopleConnect’s challenges to certification of both the damages and injunctive classes on adequacy grounds. PeopleConnect first argued that the lead plaintiff’s decision that the damages class’s § 3344 claims proceed solely on her “searchable” theory of liability would create an intraclass conflict, by sacrificing potentially stronger claims of individuals whose names have actually been searched. The panel held that this argument was not raised in the district court, and not properly raised in this appeal, and therefore the panel did not rule on the issue. Because the issue raises a matter of first impression concerning Rule 23’s adequacy prong, the panel provided general guidance should the issue be appropriately raised in the district court. The panel also rejected PeopleConnect’s argument that the lead plaintiff would not adequately represent the Rule 23(b)(2) injunctive class. Accordingly, the panel affirmed the district court’s certification of the class. 4 NOLEN V. PEOPLECONNECT, INC. COUNSEL Benjamin R. Osborn (argued), Law Office of Benjamin R. Osborn, Margaretville, New York; Michael F. Ram and Marie N. Appel, Morgan & Morgan Complex Litigation Group, San Francisco, California; Raina C. Borrelli and Samuel J. Strauss, Strauss Borrelli PLLC, Chicago, Illinois; for Plaintiff-Appellee. Ian H. Gershengorn (argued), Jenner & Block LLP, Washington, D.C.; Debbie L. Berman and Clifford W. Berlow, Jenner & Block LLP, Chicago, Illinois; for Defendant-Appellant. Brian D. Schmalzbach, McGuireWoods LLP, Richmond, Virginia; Jennifer B. Dickey and Christopher J. Walker, United States Chamber Litigation Center, Washington, D.C.; for Amicus Curiae The Chamber of Commerce of the United States of America. Rebecca Tushnet, Harvard Law School, Cambridge, Massachusetts, for Amici Curiae Intellectual Property and First Amendment Law Professors. OPINION BERZON, Circuit Judge: For much of the 150-plus-year history of school yearbooks, the embarrassing photographs and cringeworthy anecdotes featured in these annual volumes languished in obscurity, tucked away in basements and closets across the country. That obscurity no longer holds. Companies and libraries now race to digitize old yearbooks, “broadcasting  NOLEN V. PEOPLECONNECT, INC. 5 everyone’s acne and terrible haircuts for the whole world to see.” Kate Eichhorn, School Yearbook: The Untold Story of a Cringey Tradition and Its Digital Afterlife 162 (2025). This appeal involves Classmates.com, an online library of digitized yearbooks. Defendant-Appellant PeopleConnect, Inc., operates Classmates.com. The district court in this case issued an order certifying damages and injunctive classes of individuals whose names PeopleConnect allegedly used in violation of California’s right-of-publicity statute. The company challenges certification on a host of grounds, falling into two categories: first, that common questions of law or fact do not predominate over individual ones, see Fed. R. Civ. P. 23(b)(3); and second, that the lead plaintiff, Alicia Nolen, will not adequately represent the classes, see Fed. R. Civ. P. 23(a)(4). We conclude that the district court did not abuse its discretion by certifying the classes. I. BACKGROUND A. Factual Background PeopleConnect owns and operates Classmates.com, an online website containing a library of more than 450,000 yearbooks and enabling users to search the yearbooks and connect with their former schoolmates. To build its yearbook collection, PeopleConnect purchases yearbooks and accepts copies donated by individuals and schools. Individuals who donate yearbooks they own must fill out a form authorizing PeopleConnect to use their likenesses on Classmates.com. When it obtains a yearbook, PeopleConnect scans it, uses a program to make the text on each page searchable, and uploads a copy of each page to Classmates.com. Website 6 NOLEN V. PEOPLECONNECT, INC. users can flip through these digitized pages. They can also search Classmates.com for an individual’s name or other keywords to see whether that name or phrase appears within any yearbook. There are three tiers of user access to Classmates.com. The first, “visitor,” is composed of people who interact with the website without registering or providing personal information. Visitors can browse yearbooks and search for names. A visitor typically browses by clicking through a series of menu options to a landing page associated with a particular high school in a specific town and state. The visitor can select an available yearbook and view its first few pages in full-size, high resolution. The rest of the pages in that yearbook appear as low-resolution thumbnails. A visitor can also search for particular names or words in the site’s yearbook collection. The search results appear in list form, accompanied by small thumbnails of the corresponding pages. When a visitor clicks on a thumbnail while browsing or searching, Classmates.com prompts the visitor to register for a free user account. Unless she registers, a visitor can only see full-size, high-resolution images of the first few pages of a yearbook and thumbnails of pages on which searched names or words appear. The second user tier is “free member.” To become a free member, a visitor registers for an account on the website and agrees to its terms of service. The terms of service include a provision stating that users who search for themselves on Classmates.com consent to PeopleConnect’s “use and display of information” about them. Free members have much greater access than visitors to the site’s yearbooks. Unlike visitors, free members are “not limited to viewing high-resolution images of only the first several pages in a yearbook” but instead “can view high-resolution images of  NOLEN V. PEOPLECONNECT, INC. 7 all yearbook pages” on the site. When a free member conducts a search, the results are displayed on a separate page; next to those results there may be an advertisement for a paid Classmates.com subscription. That ad does not itself contain names or photos from yearbooks, but it is displayed alongside search results—which may contain names—and small thumbnails of each responsive page. The third user tier is paid “subscriber,” also known as a “Classmates+ member.” Like a free member, a subscriber has registered on the website and agreed to its terms of service. Both free members and subscribers have access to “all yearbooks in full resolution.” But subscribers can access more information about the website’s registered users, exchange messages with other registered users, and receive a discount when purchasing hardcover yearbook reprints. Classmates+ subscription advertisements are at the core of the substantive claims in this case. Visitors do not see subscription ads on their screen as they browse or search yearbooks. But if a visitor searches for a particular name and clicks on the small thumbnail next to a search result for that name, she will be prompted to register for a free account. Once she registers, she will immediately receive an ad encouraging her to purchase a subscription. The parties and the district court referred to this series of steps as the “sequence theory” of how individuals’ names are connected with PeopleConnect’s advertising. Free members encounter subscription ads in other ways as well, including when they log into their account and when they search Classmates.com’s yearbook library for particular individuals. For free members, a subscription ad may appear as one of several banner ads along the side of the search results page. This asserted connection between names and 8 NOLEN V. PEOPLECONNECT, INC. advertisements has been known in this lawsuit as the “banner theory.” Finally, subscribers do not see Classmates.com subscription ads, as they are already paying members. B. Procedural History The lead plaintiff in the operative complaint is Alicia Nolen, a California resident who graduated from Tulare Union High School in 2019 and whose name and photo are featured in at least one yearbook on Classmates.com. 1 Nolen, on behalf of other individuals featured in yearbooks on Classmates.com, alleged that PeopleConnect violated California’s statutory right of publicity, Cal. Civ. Code § 3344, 2 by using their names without consent to advertise 1 The initial complaint was filed in December 2020. Since then, four previous named plaintiffs voluntarily dismissed their claims. It turned out that those individuals had registered accounts on Classmates.com and thereby consented to the use of their likenesses under the site’s terms of service. A fifth former named plaintiff’s claim was dismissed as time- barred, and a sixth voluntarily dismissed his claim after being served with discovery. Nolen is now the sole named plaintiff. 2 Section 3344(a)(1) provides: Any person who knowingly uses another’s name . . . for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without that person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by them as a result of the unauthorized use,  NOLEN V. PEOPLECONNECT, INC. 9 paid subscriptions to Classmates.com. 3 Nolen contends that PeopleConnect violated § 3344 by directing visitors who search for names to sign up for free accounts and immediately prompting those users to purchase subscriptions (the sequence theory), as well as by placing subscription ads next to free members’ search results for names (the banner theory). Under both theories, she argues, PeopleConnect violated the statute when it included a student’s name in the database of terms that could appear in search results—in other words, when it made the name and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. Cal. Civ. Code § 3344(a)(1). Section 3344(e) provides: The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing the use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a). Id. § 3344(e). 3 Nolen also brought claims for unjust enrichment and for violation of California’s unfair competition statute. The district court treated these claims as “essentially derivative of” Nolen’s § 3344 claim and focused its certification order on § 3344. The parties do not identify any reason why these additional claims should affect the certification analysis. So we likewise concentrate our discussion on § 3344. 10 NOLEN V. PEOPLECONNECT, INC. searchable on Classmates.com—even if no one has actually searched for that name. In other words, Nolen’s theory of § 3344 liability, and so the fulcrum for its related class certification analyses, is that making individuals’ “identities searchable within [PeopleConnect’s] advertising flow is a commercial use requiring consent under the statute.” PeopleConnect moved to dismiss Nolen’s complaint, arguing that its alleged use of her identity does not, as a matter of law, violate § 3344. Specifically, the company contended that making Nolen’s name searchable does not amount to a use of her identity “directly connected” to commercial advertising. Cal. Civ. Code § 3344(e). The district court denied the motion, holding that Nolen had plausibly alleged that PeopleConnect “commercially used” her likeness “the moment the image became a publicly accessible part of [the company’s] advertising flow.” The court noted that “the strength of the connection between advertisements and plaintiff’s [likeness]” was “a question of fact.” Nolen then moved to certify injunctive and damages classes under Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3). In December 2023, the district court conditionally certified the classes, and in May 2024, it approved the following definition for both: All persons residing in the State of California: (1) who are not, and have never been, registered users of Classmates.com; (2) who have never donated a yearbook to Classmates.com; and (3) for whom a search of their name, using the search bar to search a California yearbook made available for viewing on the Classmates.com website,  NOLEN V. PEOPLECONNECT, INC. 11 yields at least one record corresponding to the class member from a California yearbook that Classmates.com first made publicly available on or after December 18, 2018. PeopleConnect sought, and we granted, permission to appeal the district court’s certification orders under Federal Rule of Civil Procedure 23(f). II. DISCUSSION To ensure that Rule 23’s requirements are satisfied, a district court must conduct a “rigorous analysis” before certifying a class. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 664 (9th Cir. 2022) (en banc) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). “Plaintiffs wishing to proceed through a class action must actually prove—not simply plead—that their proposed class satisfies each requirement of Rule 23.” Id. (brackets omitted) (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014)). On appeal of a class action certification, we review legal questions de novo, factual questions for clear error, and the district court’s ultimate decision to certify a class for abuse of discretion. Id. at 663. PeopleConnect contends that the putative classes do not satisfy two of Rule 23’s requirements, predominance and adequacy. We address each requirement in turn. A. Predominance To certify a class under Rule 23(b)(3), the district court must find “that the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). The 12 NOLEN V. PEOPLECONNECT, INC. predominance requirement “presupposes satisfaction of the commonality requirement of Rule 23(a)(2), which itself tests the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Noohi v. Johnson & Johnson Consumer Inc., 146 F.4th 854, 862 (9th Cir. 2025) (citation modified) (quoting Lytle v. Nutramax Lab’ys, Inc., 114 F.4th 1011, 1023 (9th Cir. 2024), cert. denied, 145 S. Ct. 1308 (2025)), cert. denied, No. 25-874, 2026 WL 1052179 (U.S. Apr. 20, 2026). Examining further, the predominance question “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quoting 2 William B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed. 2012)). Accordingly, the predominance requirement “calls upon courts to give careful scrutiny to the relation between common and individual questions in a case.” Id. An individual question (if a question of fact or mixed question of law and fact) is one that requires “members of a proposed class . . . to present evidence that varies from member to member.” Id. (quoting Newberg on Class Actions, supra, § 4:50). By contrast, a common question is one where “the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof.” Id. (brackets omitted) (quoting Newberg on Class Actions, supra, § 4:50). “If the plaintiff demonstrates that class issues exist, the defendant must invoke individualized issues and provide sufficient evidence that the individualized issues bar recovery on at least some claims, thus raising the spectre of class-member- by-class-member adjudication of the issue.” Van v. LLR, Inc., 61 F.4th 1053, 1067 (9th Cir. 2023). Rule 23(b)(3) is  NOLEN V. PEOPLECONNECT, INC. 13 satisfied if “one or more of the central issues in the action are common to the class and can be said to predominate, . . . even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” Tyson, 577 U.S. at 453 (quoting 7AA Wright & Miller’s Federal Practice and Procedure § 1778 (3d ed. 2005)). PeopleConnect contends that the predominance requirement is not met here for three reasons. First, it argues that the district court misconstrued § 3344 as allowing claims based on the searchability of an individual on PeopleConnect’s website, whether or not a user has actually searched for that individual. PeopleConnect urges us to construe § 3344 as permitting recovery only by claimants who have been searched and contends that such a showing could be made only through individualized, not common, evidence. Second, in the company’s view, the district court misconstrued § 3344 as allowing claimants to obtain a minimum award of statutory damages without presenting individualized evidence of either mental anguish or actual economic harm. Third, PeopleConnect argues, the district court did not identify an adequate “winnowing plan” to exclude claimants ineligible for relief. We disagree with the company on all three grounds and hold predominance satisfied on the record before us. 1. Whether § 3344 Requires Individualized Evidence That an Individual Has Been Searched PeopleConnect first asserts that a putative class member does not have a viable § 3344 claim absent proof that he or she has actually been searched on Classmates.com. The district court rejected this argument at the motion-to-dismiss stage and again in its certification order. Although 14 NOLEN V. PEOPLECONNECT, INC. PeopleConnect cannot directly challenge the denial of its motion to dismiss in a Rule 23(f) appeal, it contends that, to determine whether predominance is satisfied, we must decide whether § 3344 requires a claimant to have been searched or only to be searchable. If the statute requires being searched, individualized disputes over liability will loom large because (at least on the current record) there is no classwide evidence revealing which individuals have been searched. If the statute only requires being searchable, Nolen can establish that fact using common evidence, including, as the district court noted, by “show[ing] how, generally speaking, a search can be done by a name and that will yield search results with . . . a banner ad promoting the [Classmates+] subscription service.” We reject this predominance challenge because it goes to the merits of the class’s § 3344 claims, not to whether the class can be certified. At this stage of the litigation, the district court “is merely to decide a suitable method of adjudicating the case and should not turn class certification into a mini-trial on the merits.” Noohi, 146 F.4th at 863 (internal quotation marks omitted) (quoting Edwards v. First Am. Corp., 798 F.3d 1172, 1178 (9th Cir. 2015)). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). When deciding “whether the ‘common question’ prerequisite is met,” for example, “a district court is limited to resolving whether the evidence establishes that a common question is capable of class-wide resolution.” Olean, 31 F.4th at 666–67. Similarly, to determine whether predominance is satisfied, the “court must evaluate the method or methods by which plaintiffs propose to use the  NOLEN V. PEOPLECONNECT, INC. 15 class-wide evidence to prove the common question in one stroke.” Lytle, 114 F.4th at 1023 (citation modified) (quoting Olean, 31 F.4th at 666). The commonality and predominance inquiries do not encompass the questions “whether the evidence in fact establishes that plaintiffs would win at trial,” Olean, 31 F.4th at 667, or “whether the . . . plaintiffs have stated a cause of action,” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 808 (9th Cir. 2010) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)). Thus, when “the concern about the proposed class is an alleged failure of proof as to an element of the plaintiffs’ cause of action[, ]courts should engage that question as a matter of summary judgment, not class certification.” Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1140 (9th Cir. 2016) (citation modified) (quoting Tyson, 577 U.S. at 457). Whether evidence of searchability is sufficient to sustain a § 3344 claim is the question PeopleConnect asks us to— but that we cannot—answer today. The predominance inquiry “begins, of course, with the elements of the underlying cause of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). The elements of a § 3344 claim are: “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; . . . (4) resulting injury”; (5) “a knowing use of the plaintiff’s name, photograph or likeness for purposes of advertising or solicitation or purchases”; and (6) “a direct connection . . . between the use and the commercial purpose.” Maloney v. T3Media, Inc., 853 F.3d 1004, 1008 n.2 (9th Cir. 2017) (citation modified) (quoting Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1918 (1996)). 16 NOLEN V. PEOPLECONNECT, INC. With respect to this sixth element, the statute specifies that “it shall be a question of fact whether or not the use of the person’s name . . . was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required.” Cal. Civ. Code § 3344(e). So PeopleConnect’s core contention—that it does not violate § 3344 simply by making a name searchable—is really an argument that searchability alone is not factually sufficient to establish that the database is “so directly connected” to the company’s commercial advertising “as to constitute a use for which consent is required.” Id. In other words, PeopleConnect asserts an “alleged failure of proof as to an element of the plaintiffs’ cause of action.” Ruiz Torres, 835 F.3d at 1140 (quoting Tyson, 577 U.S. at 457). PeopleConnect may eventually be proven right that the class’s claims fail on the merits if they rest on evidence of searchability alone. But “a district court cannot decline certification merely because it considers plaintiffs’ evidence relating to the common question to be unpersuasive and unlikely to succeed in carrying the plaintiffs’ burden of proof on that issue.” Olean, 31 F.4th at 667 (citing Amgen, 568 U.S. at 459–60). 4 In other words, we must affirm 4 Where the question is an evidentiary one—whether proffered expert testimony is probative of whether an element of the cause of action can be proven by common proof—Tyson specified that the district court should deny certification only if “no reasonable juror” could find the evidence “probative” of that element. 577 U.S. at 459; see, e.g., id. at 454–60 (holding that an expert’s representative sample of the time workers spent donning and doffing protective gear was a permissible means of establishing their hours worked in a wage-and-hour class action); Olean, 31 F.4th at 670–80 (holding that an economist’s  NOLEN V. PEOPLECONNECT, INC. 17 certification even though a jury may not ultimately consider the proposed common evidence “adequate proof of liability,” Senne v. Kan. City Royals Baseball Corp., 934 F.3d 918, 945 (9th Cir. 2019), or the district court holds that summary judgment is appropriate because there is not a genuine issue of material fact as to the direct connection question. Absent such a determination by the jury or the district court, we will not reverse certification even if we think the merits evidence is weak. Tyson, 577 U.S. at 459. “To require an actual weighing, at class certification, of whether plaintiffs’ evidence could sustain a jury verdict would collapse the class certification and summary judgment inquiries in precisely the manner Tyson Foods warns against.” Lytle, 114 F.4th at 1028. Here, the statute defines the “directly connected” issue as a “question of fact.” Cal. Civ. Code § 3344(e). The district court held the common evidence of searchability offered by Nolen could sustain a jury verdict of a direct connection between PeopleConnect’s use of class members’ identities regression model could be used to demonstrate classwide price impact in an antitrust case); Senne v. Kan. City Royals Baseball Corp., 934 F.3d 918, 945–50 (9th Cir. 2019) (holding that an expert survey could be used to demonstrate hours worked by class members in a wage-and-hour action), disapproved of on other grounds by Olean, 31 F.4th 651. Here, however, the factual issue is not an evidentiary one—there is no issue concerning whether the evidence to be offered is “probative.” Instead, the factual issue—whether the use of the plaintiff class members’ identity in a searchable database is “directly connected” with the commercial sponsorship or advertising—will itself be determinative of the merits of the case as the plaintiff has pleaded it. Under these circumstances, the admonition against deciding the merits of the claim at the certification stage unless necessary—even at the once-removed level of determining what a reasonable jury could find—counsels against further consideration of the question at the certification stage. 18 NOLEN V. PEOPLECONNECT, INC. and the company’s advertising. Effectively, then, PeopleConnect asks us to make a factual finding in the first instance that searchability of class members’ names is not “so directly connected” to the company’s advertising “as to constitute a use for which consent is required.” Id. But factfinding is the jury’s role, not ours. See, e.g., Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1133 (9th Cir. 1979). PeopleConnect’s request defies the Supreme Court’s express instruction that when “the concern about the proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs’ cause of action—courts should engage that question as a matter of summary judgment, not class certification.” Tyson, 577 U.S. at 457. Our decision in United Steel Workers is illustrative of the line between a merits ruling and the class certification inquiry. There, a class of oil workers alleged that their employer violated state law by requiring them to eat meals while “on duty” without the mandatory compensation due for on-duty periods. United Steel Workers, 593 F.3d at 804. The plaintiffs’ legal theory was that their meal periods were “on duty” within the meaning of state law—and thus should have been compensated—because they were required to be on call while eating. Id. at 804 & n.3. The district court held that the class failed Rule 23(b)(3)’s predominance requirement because “if Plaintiffs’ ‘on duty’ theory is rejected . . . the Court will be faced with a case . . . requiring individualized trials on each class member’s meal period claims.” Id. at 805 (alterations in original). We reversed. Rule 23, we explained, required the district court to evaluate predominance as to the “plaintiffs’ actual legal theory,” even though “there could be no assurances that they would prevail on this theory.” Id. at 808 (citation modified). The  NOLEN V. PEOPLECONNECT, INC. 19 Rule did not permit the district court to “declin[e] certification based on the possibility that plaintiffs would not prevail on the merits on their ‘on duty’ theory.” Id. After all, “a court can never be assured that a plaintiff will prevail on a given legal theory prior to a dispositive ruling on the merits.” Id. at 809. Like this case, United Steel Workers involved a dispute over the sufficiency of the plaintiffs’ claims as pleaded and pursued. There, the parties disagreed about whether the plaintiffs took meal periods while “on duty” because they could not leave their units and were subject to interruption. Id. at 804. Here, the parties debate whether evidence of searchability is enough under the statute to show a ‘“direct’ connection” between individuals’ names and PeopleConnect’s commercial advertisements. Maloney, 853 F.3d at 1008 n.2 (quoting Fleet, 50 Cal. App. 4th at 1918). Although class members’ identities are searchable on the Classmates.com website, there is no guarantee that the class will prevail on Nolen’s sole legal theory—that they are being used in violation of § 3344. United Steel Workers makes clear that what matters under Rule 23(b)(3) is whether the “plaintiffs’ actual legal theory . . . was one in which common issues of law or fact . . . predominate over individual questions,” not whether there are “assurances that plaintiffs would prevail on this theory.” 593 F.3d at 808 (citation modified). Either the trier of fact will find, based on the evidence of searchability, that PeopleConnect used class members’ identities in a manner directly connected to commercial sponsorship or advertising, or the trier of fact will find searchability alone insufficient to prove that element of § 3344. In either scenario, “the class is entirely cohesive: It will prevail or fail in unison.” Amgen, 568 U.S. at 460. Nolen’s counsel so recognized at oral argument, 20 NOLEN V. PEOPLECONNECT, INC. stating that if evidence of searchability were not enough, then the putative class’s claims would simply “fail on the merits.” Oral Arg. at 36:45. Our recent decisions in Small v. Allianz Life Insurance Co., 122 F.4th 1182 (9th Cir. 2024), cert. denied, 145 S. Ct. 2852 (2025), and Farley v. Lincoln Benefit Life Co., 150 F.4th 1197 (9th Cir. 2025), on which PeopleConnect relies, are not to the contrary. To determine whether Rule 23’s requirements were met in those cases, we needed first to determine the required elements of the plaintiffs’ statutory claims. Small, 122 F.4th at 1191; Farley, 150 F.4th at 1201. Only after determining what elements were necessary could we determine whether those elements could be established using common proof, such that common questions would predominate over individual ones. Small, 122 F.4th at 1198– 1200. Here, PeopleConnect attempts to frame the statutory issue as whether § 3344 imposes a “third-party viewership requirement.” But this case does not involve a dispute over the elements of a § 3344 claim. Those elements, which we set forth above, are not in dispute. Instead, the parties dispute whether Nolen’s searchability evidence is enough to prove that PeopleConnect’s use of class members’ names “was so directly connected with” its advertising “as to constitute a use for which consent is required.” Cal. Civ. Code § 3344(e). The statute makes that inquiry “a question of fact.” Id. The only issue before us today is the propriety of class certification. Because § 3344 provides that the “direct connection” element involves a factual determination, allowing the class to proceed under her searchability theory does not pose a predominance problem.  NOLEN V. PEOPLECONNECT, INC. 21 2. Whether § 3344 Requires Individualized Evidence of Injury PeopleConnect next argues that predominance cannot be satisfied because the statutory damages provision of § 3344 requires individualized evidence of mental anguish. PeopleConnect further maintains that if, contrary to its primary position, economic injury does suffice, individualized evidence of economic injury, not common proof, is necessary. The company did not present to the district court when opposing certification its contention that a § 3344 plaintiff must prove mental anguish. Instead, PeopleConnect argued in its brief that proof of injury “may take one of two forms: ‘mental anguish,’ . . . or ‘economic injury,’” and that there was a failure of common proof as to both forms of injury. And, at the class certification hearing, PeopleConnect’s counsel acknowledged that § 3344 “says you have to show injury. It’s either emotional distress or actual economic injury” (emphasis added). Where, as here, our authority to review the class certification determination before a final judgment comes from Rule 23(f), “[w]e must police the bounds of our jurisdiction” and may consider merits questions only to the extent they bear on the district court’s certification decision. Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1113 (9th Cir. 2014). “An issue cannot form part of the district court’s class certification decision if it was never raised at the class certification stage.” Van, 61 F.4th at 1066 22 NOLEN V. PEOPLECONNECT, INC. n.9 (citation modified). 5 Because the argument that Plaintiffs must prove mental anguish was not properly raised in the district court, “we cannot say that the district court abused its discretion in failing to consider [an] argument[] with which it was not presented.” Lytle, 114 F.4th at 1032– 33. We do reach, and reject, PeopleConnect’s argument that a showing of economic injury cannot be made without individualized evidence. 6 The district court held that if PeopleConnect were found to have used each class member’s name in direct connection with advertising, “then it can reasonably be inferred that the name . . . has some economic value, even if small.” That common-sense inference “falls within a broad range of permissible conclusions” and so is not an abuse of discretion. Olean, 31 F.4th at 669 (quoting Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017)). A company advertises to sell its products or services and thereby to generate revenue. 5 At the motion to dismiss stage, PeopleConnect made, and lost, the argument that individual proof of mental anguish is essential for statutory damages. It did not renew the argument in opposing certification. It did not do so, even though Nolen had made clear that her proposed class would seek statutory damages based on economic harm alone. 6 To the extent PeopleConnect also argues that putative class members must produce individualized evidence quantifying their actual damages, § 3344 does not require a plaintiff seeking statutory damages to provide proof of the value of her economic injury. The statute makes a violator liable for “an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered.” Cal. Civ. Code § 3344(a)(1) (emphasis added); see Orthopedic Sys., Inc. v. Schlein, 202 Cal. App. 4th 529, 547 (2011). In other words, “[s]ection 3344 provides for minimum damages of $750, even if no actual damages are proven.” KNB Enters. v. Matthews, 78 Cal. App. 4th 362, 367 (2000).  NOLEN V. PEOPLECONNECT, INC. 23 One can reasonably infer that by using an individual’s likeness in direct connection with its advertising, the company believes her likeness is valuable. 7 Otherwise, why would the company think using that person’s likeness would help increase their bottom line? As we explained long ago, “the appropriation of the identity of a relatively unknown person may result in eco