In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1831

CHRISTINE DANCEL,

Plaintiff-Appellant,

v.

GROUPON, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-cv-02027 — Ronald A. Guzmán, Judge.

____________________

ARGUED SEPTEMBER 16, 2019 — DECIDED DECEMBER 18, 2019

____________________

Before BAUER, BRENNAN, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Is a person’s username a part of her

identity? That is a complex question, but one that Christine 

Dancel proposes can be resolved categorically for all 

usernames and all people. The district court thought otherwise and declined to certify a class because it would have to 

be decided username-by-username whether each one is an aspect of a given class member’s identity, at least as that word 

is defined by the Illinois Right of Publicity Act (IRPA), 765 
2 No. 19-1831

ILCS 1075/5. Dancel contends this rejection of her theory was

an improper decision on the merits of her and the class’s

claims, and the court therefore abused its discretion at the 

class-certification stage. We see no such mistake in the district 

court’s reasoning and affirm the order denying certification.

I. Background

Groupon, Inc. is an online marketplace that sells vouchers 

for other businesses. Groupon’s website gives each business 

its own page with information about the business and the discounts available. Between April 2015 and February 2016, 

some visitors to the site could scroll down each page to see a 

“Photos” section that displayed up to nine pictures. If the visitor clicked a button, the page would reveal up to eighteen 

more. Groupon collected and displayed these pictures automatically using what it calls the “Instagram Widget.” As its 

name suggests, this Widget pulled publicly available pictures

from the social networking service Instagram. It selected

which pictures to assign to each page based on data linking 

the photos to the advertised business’s location. When a 

Groupon visitor hovered her cursor over a displayed photo,

the Widget would show the unique, user-selected username 

of the Instagram account whose photo was being displayed 

and a caption, if the user had attached one to the photo. 

Dancel is an Instagram user, and like all Instagram users, 

her account had a username—namely, “meowchristine.” In 

2015, Dancel uploaded to her account a picture of herself and 

her boyfriend visiting Philly G’s, a restaurant in Vernon Hills, 

Illinois. This picture was one of several Groupon displayed on

Philly G’s page while the Widget was active.
No. 19-1831 3

Dancel alleges that Groupon’s inclusion of her photo and 

username on Philly G’s page violated the IRPA, which prohibits the use of a person’s identity—meaning an “attribute of 

an individual that serves to identify that individual to an ordinary, reasonable viewer or listener”—for commercial purposes without consent. 765 ILCS 1075/5, 30. She filed suit in 

the Circuit Court of Cook County and sought to maintain the 

action on behalf of a class of “Illinois residents” whose photographs Groupon had similarly shown on its pages. The parties litigated in that posture for two years until Dancel moved 

to certify a different class, defined as “[a]ll persons who maintained an Instagram Account and whose photograph (or photographs) from such account was (or were) acquired and used 

on a groupon.com webpage for an Illinois business.” The class 

also had a sub-class: “All members of the Instagram Class 

whose likeness appeared in any photograph acquired and 

used by Groupon.”

In response to these new class definitions, Groupon removed the case to federal court. Dancel tried to argue this removal came too late, but the district court disagreed, denied 

her motion to remand to state court, and proceeded to decide 

whether to certify her proposed class under Federal Rule of 

Civil Procedure 23(b)(3). That provision requires, among 

other things, “that the questions of law or fact common to 

class members predominate over any questions affecting only 

individual members.” Dancel identified the common question that united the class as “whether Instagram usernames 

categorically fall within the statutory definition of ‘identity.’” 

She distinguished this inquiry from the individualized question “whether any particular username identifies an individual.”
4 No. 19-1831

The district court found Dancel’s categorical theory “unpersuasive.” Though the court accepted that a common question existed as to whether any username identifies an individual, that question was not enough to certify a class because it

“ignore[d] the individual inquiry that is the essence of determining ‘identity’ under the IRPA.” The district court listed 

several of the usernames belonging to class members—e.g., 

eawhalen, artistbarbie, isa.tdg, loparse, johanneus—and concluded that it was “simply impossible to make any type of 

across-the-board determination as to whether these names 

‘identify’ a particular person, as that term is defined by the 

IRPA.” Because it determined that the IRPA, as applied to the 

facts of this case, required a “username-by-username (photoby-photo)” inquiry, the court found that common questions 

would not predominate over individual ones and denied certification. Dancel petitioned for review of that decision, and 

we granted the petition. Fed. R. Civ. P. 23(f).

II. Jurisdiction

We start our analysis where we left off after our previous 

opinion: the district court’s jurisdiction. Dancel v. Groupon, 

Inc., 940 F.3d 381, 386 (7th Cir. 2019). The Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), extends federal subject-matter 

jurisdiction to a proposed class action that is, among other 

things, minimally diverse—meaning one member of the 

plaintiff class is a citizen of a state different from any one defendant. Groupon is a Delaware corporation with its principal 

place of business in Illinois; it is therefore a citizen of those 

two states. Instead of alleging the citizenship of even one diverse class member, Groupon asserted only that the class “undoubtedly would include at least some undetermined number of non-Illinois and non-Delaware citizens as class 
No. 19-1831 5

plaintiffs.” We agreed with Dancel that this allegation failed

to carry Groupon’s burden and directed Groupon to amend 

its notice of removal. Dancel, 940 F.3d at 384–85. Though 28 

U.S.C. § 1653 permits a party to amend jurisdictional allegations on appeal, see Heinen v. Northrop Grumman Corp., 671 

F.3d 669, 670 (7th Cir. 2012), Groupon said it required discovery to make those amendments, so we ordered a limited remand for the district court to oversee that discovery and confirm its jurisdiction. Dancel, 940 F.3d at 386.

On remand, Groupon amended its allegations and supplemented its notice of removal with three affidavits in which the

affiants attested to their significant ties to their home states, 

which are not Illinois or Delaware. Groupon also provided the 

incorporation and registration documents for two Instagramusing businesses based in California and Missouri. Dancel argued that these businesses and one of the affiants fell outside 

the class definition, but she conceded that the other two affidavits belonged to putative class members domiciled in Virginia and California, respectively. See Myrick v. WellPoint, Inc., 

764 F.3d 662, 664 (7th Cir. 2014) (“Citizenship means domicile 

(the person’s long-term plan for a state of habitation) rather 

than just current residence.”). The district court saw no reason 

to conduct an evidentiary hearing to peer beyond Groupon’s 

allegations and Dancel’s concession (which was well supported by Groupon’s evidence anyway), and neither do we. 

See Tilden v. Comm'r, 846 F.3d 882, 887 (7th Cir. 2017) (explaining that parties can agree to the fact of the parties’ citizenship—as distinct from the existence of jurisdiction—if the

agreement is not collusive). With these amended allegations

that at least one class member was a citizen of Virginia and 

another of California, Groupon has shown minimal diversity

between it and the proposed class, and the district court’s 
6 No. 19-1831

exercise of jurisdiction was proper. We may now move on to

the class-certification decision.

III. Class Certification

Dancel argues that the district court improperly addressed 

the merits of her IRPA claim at the class-certification stage, 

and that, to the extent those merits are not off limits, the court 

resolved them incorrectly. She posits that the individual content of each username is irrelevant to the class’s claims. In her 

view, an Instagram username is inherently an identity under 

the IRPA because it is unique—no two accounts can use the 

same username at the same time. Because this theory ignores 

the usernames’ content, Dancel maintains it cannot depend 

on the individual usernames of the class members but only on 

the common evidence describing the general function of Instagram usernames and the Instagram Widget. She primarily 

insists that she is entitled to test her theory, regardless of its 

validity, on a class-wide basis because Rule 23 prohibits a 

court from resolving the merits of a claim at the class-certification stage. To the extent that the court can consider the validity of her theory, she contends the district court imposed a 

higher evidentiary burden than the IRPA requires.

We review the district court’s certification decision for an 

abuse of discretion, but a district court necessarily abuses its 

discretion if its reasoning is based on a legal error, like those 

Dancel asserts. See Beaton v. SpeedyPC Software, 907 F.3d 1018, 

1025 (7th Cir. 2018), cert. denied, 139 S. Ct. 1465 (2019). We conclude that the district court did not legally err in its interpretation of the Federal Rules of Civil Procedure or the IRPA and 

did not otherwise abuse its discretion.
No. 19-1831 7

A. Rule 23(b)(3)

A plaintiff seeking class certification bears the burden of 

proving that her proposed class meets the four requirements 

of Federal Rule of Civil Procedure 23(a), as well as those for 

one of the three types of classes identified in Rule 23(b). Beaton, 907 F.3d at 1025. We, like the district court, need not reach 

the Rule 23(a) elements, because we agree that Dancel has 

failed to meet those of Rule 23(b)(3)—the provision on which 

she relies. See Riffey v. Rauner, 910 F.3d 314, 318 (7th Cir. 2018), 

cert. denied sub nom. Riffey v. Pritzker, 139 S. Ct. 2745 (2019).

Federal Rule of Civil Procedure 23(b)(3) requires a district 

court to find that “the questions of law or fact common to class

members predominate over any questions affecting only individual members.” This distinction is often easier stated than 

applied:

An individual question is one where “members of a 

proposed class will need to present evidence that varies from member to member,” while 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.”

Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (alteration in original) (quoting 2 W. Rubenstein, Newberg on 

Class Actions § 4:50 (5th ed. 2012)); Messner v. Northshore Univ. 

HealthSystem, 669 F.3d 802, 815 (7th Cir. 2012) (“If, to make a 

prima facie showing on a given question, the members of a 

proposed class will need to present evidence that varies from 

member to member, then it is an individual question. If the 

same evidence will suffice for each member to make a prima 

facie showing, then it becomes a common question.” (quoting 
8 No. 19-1831

Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005))). One 

way of establishing that common evidence can supply an answer to a common question is to consider whether an individual class member could have relied on that same evidence in 

an individual action. Bouaphakeo, 136 S. Ct. at 1046.

In resolving whether a common question exists or predominates, the Supreme Court has emphasized that “Rule 23 

grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans 

& Tr. Funds, 568 U.S. 455, 466 (2013); see also Messner, 669 F.3d 

at 811 (“[T]he court should not turn the class certification proceedings into a dress rehearsal for the trial on the merits.”).

Critically, “Rule 23 allows certification of classes that are fated 

to lose as well as classes that are sure to win.” Schleicher v. 

Wendt, 618 F.3d 679, 686 (7th Cir. 2010). Still the merits are not 

completely off limits. Rule 23 is more than “a mere pleading 

standard,” and the court must satisfy itself with a “rigorous 

analysis” that the prerequisites of certification are met, even 

if that analysis has “some overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 

338, 350–51 (2011). We have described this analysis as involving a “peek at the merits” that is “limited to those aspects of 

the merits that affect the decisions essential under Rule 23.” 

Schleicher, 618 F.3d at 685.

The Supreme Court discussed the limits and extent of this 

peek in Amgen Inc. v. Connecticut Retirement Plans and Trust 

Funds, 568 U.S. 455. There the Court confronted a fraud-onthe-market securities class action. The underlying securities 

fraud claim required a plaintiff to prove, among other things, 

a material misstatement or omission and reliance on that misrepresentation. Id. at 460–61. Ordinarily, reliance is a fact-
No. 19-1831 9

intensive individual question that is not conducive to classwide resolution. Id. at 462–63. Under the fraud-on-the-market 

theory, however, a plaintiff can demonstrate reliance by common proof, on the inference that a security traded in an efficient market reflects all publicly available material information, so all buyers presumptively relied on false public 

statements when purchasing the security. Id. at 461–62. In order to certify a class under this theory, a plaintiff is required 

to affirmatively prove that the market is efficient and that an 

alleged misrepresentation was publicly made. Id. at 473. Not 

so with materiality, the Supreme Court held. 

The Court gave two reasons why a plaintiff does not need 

to establish materiality in order to certify a class but can wait 

to prove it at the merits stage. First, materiality is an objective 

question that can be proven through common evidence. Id. at 

467. Second, the Court emphasized that “there is no risk whatever that a failure of proof on the common question of materiality will result in individual questions predominating.” Id. 

at 467–68. This is so because materiality is an element of every 

plaintiff’s securities-fraud claim and not just a prerequisite to 

the class’s fraud-on-the market theory, as publicity and market efficiency are. Id. at 468, 473–74. “As to materiality, therefore, the class is entirely cohesive: It will prevail or fail in 

unison. In no event will the individual circumstances of particular class members bear on the inquiry.” Id. at 460. 

The parties agree that the IRPA's identity element is like

materiality in that it, too, is an objective-inquiry—it asks 

whether an attribute would identify a plaintiff to the “ordinary, reasonable viewer or listener,” 765 ILCS 1075/5. Dancel 

concedes, however, that her theory is different from materiality, in that if a class is certified and it is proven that a username 
10 No. 19-1831

is not categorically an identity, Dancel and the class’s claims 

would “remain live,” Amgen, 568 U.S. at 474. Each person 

could still try to prove, after decertification, that his or her 

username is an identity in a way different from usernames 

generally.

This distinction is not fatal to class certification, Dancel argues, because this court has permitted certification even when 

there was a risk the court might later need to decertify the 

class. In Bell v. PNC Bank, N.A., 800 F.3d 360 (7th Cir. 2015), 

we affirmed a district court’s certification of a class alleging 

PNC had a policy requiring employees to work unpaid overtime. Id. at 372. We recognized that, if the policy were found 

not to exist then the class would be decertified, and the class 

members could still bring individual claims. Those individual 

claims, though, “would be based on an entirely different legal 

theory”—“Employee A alleging that her manager, Manager 

B, forced her to work off-the-clock.” Id. at 378. The class’s policy-based theory would still “prevail or fail for the class as a 

whole.” Id. Similarly, in Costello v. BeavEx, Inc., 810 F.3d 1045

(7th Cir. 2016), we reversed the denial of certification to a class 

of couriers arguing that they were employees—not independent contractors—of a delivery company, BeavEx. Id. at 1048–

49. Under state law, all workers were employees unless the 

employer could prove three elements, but the district court 

thought only the second element (whether the plaintiffs performed work outside the usual course of the employer’s business) was subject to common proof. Id. at 1059. The district 

court refused to consider whether this common question predominated for fear of deciding the merits of the other elements. Id. at 1060. We explained that even if only this single 

element was subject to common proof, that did not prevent 

certification. Id. If the plaintiffs won on that element, then all 
No. 19-1831 11

the couriers would be employees notwithstanding the other 

elements; if BeavEx won, then it would not have to relitigate 

the second element against each plaintiff. Id. Regardless of the 

way the evidence turned out, this common answer would represent a significant aspect of the case. Id.

Dancel’s theory is different from those in Bell and Costello

because it presents a question that is common only if she is 

right. If the class in Bell lost on its theory, no member could 

argue that PNC had a policy only with respect to her overtime; nor could an individual courier in Costello argue that 

BeavEx’s usual course of business included delivery in his situation but not the class’s. The question—does this policy exist? is couriering BeavEx’s usual business?—was common regardless of its answer. If the common proof failed as to that 

answer, the plaintiffs could not use individualized proof in its 

stead. Any individual class member with a claim remaining 

would have to rely on different proof to answer a different 

question to establish the defendant’s liability. 

In contrast, the answer to Dancel’s proposed common 

question—are usernames categorically identities under the 

IRPA?—matters not only for the merits but for commonality.

If the answer to that question is yes, then one significant aspect of the case can be resolved in the class’s favor (if, as a 

factual matter, Groupon used the usernames within the 

meaning of the IRPA). But if usernames are not categorically

an identity under the IRPA, and the court decertified the class, 

then the same element would remain entirely subject to dispute for each plaintiff. Nothing significant will have been decided, because each member could provide individualized 

evidence—her username’s content—on top of the common 

evidence to prove her username is an identity. Indeed, 
12 No. 19-1831

because each username necessarily has some content, 

whether it be meowchristine or isa.tdg or loparse, the individual claims would not be hindered by the preclusion of a content-ignorant theory. Class members would be prohibited 

only from arguing again that all usernames are categorically 

an identity—that is, from certifying another class.

This difference arises from the fact that Dancel’s proposed 

common question is whether identity is a common or an individualized question in the first place. Must identity be proven 

through “evidence that varies from member to member” (the 

username’s content) or can “the same evidence” (its being a

username) “suffice for each member to make a prima facie 

showing”? Bouaphakeo, 136 S. Ct. at 1045. This is not a question 

that can be saved for after certification; it is precisely the question the court must answer at certification. As we said in Bell,

“[a] proposed class of plaintiffs must prove the existence of a 

common question ... but it need not prove that the answer to 

that question will be resolved in its favor.” 800 F.3d at 376. 

Like PNC, though, Dancel has “conflated [these] two inquiries,” id., by failing to separate her argument for why a common question exists with an argument that the question

should be resolved in her favor. A court cannot decide the latter, but it must decide the former—and it must police this fine

line or else reduce certification to a mere pleading standard.

The Third Circuit faced a situation like this in Gonzalez v. 

Corning, 885 F.3d 186 (3d Cir. 2018). The plaintiff there alleged 

that the defendant’s shingles were defectively designed because some would not last as long as advertised. Id. at 196. 

Whether any individual shingle would fail, though, could be 

determined only on review of that shingle. Id. The plaintiff 

came up with a theory to avoid this problem: the defect was 
No. 19-1831 13

not that the individual shingle would fail, but the chance that 

any shingle would fail. Id. at 197. This theory presented a common, shared defect (the chance of failure) distinct from the individualized defect (the failure), and the plaintiff insisted

that, under Amgen, he could test the merits of his common 

theory on a class-wide basis. Id. at 200. The Third Circuit saw 

this request for what it was, though—an “attempt to circumvent the need to identify a common defect by, in effect, redefining the concept.” Id. at 198. By checking the plaintiff’s superficially common theory for “coherence and legal foundation,” the district court had not found that any class member’s 

shingles were not defective and thereby decided the merits in 

violation of Amgen; it “merely applied Rule 23’s predominance requirement.” Id. at 201.

The same reasoning applies here. Dancel is trying to define 

the concept of identity in a common way so that it covers up 

individual questions that each class member might raise. Her 

use of the word “categorically” makes her theory universal, 

but only in the way “any question becomes universal when it 

includes the word ‘all.’” Id. This is not a disingenuous tactic 

under Rule 23—it is no different from how a securities-fraud 

class can paper over the individualized question of reliance 

with the fraud-on-the-market theory under which all buyers 

are presumed to rely on material public statements. See 

Amgen, 568 U.S. at 461. Whether the tactic succeeds, however, 

must be determined before class certification by considering 

the substantive law underlying the putative class’s claims. See

Richard A. Nagareda, Class Certification in the Age of Aggregate 

Proof, 84 N.Y.U. L. Rev. 97, 104 (2009). 

The district court, then, was right to identify the starting 

point as “the substantive elements of plaintiffs’ cause of action 
14 No. 19-1831

and ... the proof necessary for the various elements.” Simer v. Rios, 

661 F.2d 655, 672 (7th Cir. 1981) (emphasis added). If the proposed common proof could be enough to carry a prima facie 

case on an element for an individual plaintiff, in an individual 

case, then that element presents a common question that can 

predominate for a class action. Bouaphakeo, 136 S. Ct. at 1045–

47; Messner, 669 F.3d at 815; see also Costello, 810 F.3d at 1060 

(“Plaintiffs have demonstrated that common questions predominate by making out a prima facie claim ... based on evidence common to the class.”). Here the present dispute is precisely what evidence is needed to make a prima facie case for 

the identity element under the IRPA. Would facts common to 

all Instagram usernames (i.e., their innate uniqueness) suffice, 

or would a plaintiff need to show something more, something 

about her username, to meet her initial burden? Though this 

question overlaps with the merits, it is also “vital to any sensible decision about class certification,” Szabo v. Bridgeport 

Machs., Inc., 249 F.3d 672, 674 (7th Cir. 2001), and the district 

court was right to decide it before certifying a class. We must 

now determine whether the court correctly decided it.

B. The IRPA

We start with the substantive elements of an IRPA claim. 

The IRPA prohibits “us[ing] an individual’s identity for commercial purposes during the individual’s lifetime without 

having obtained previous written consent from the appropriate person.” 765 ILCS 1075/30(a). A plaintiff must thus prove

(1) the appropriation of one’s identity, (2) without one’s consent, (3) for another’s commercial benefit. Trannel v. Prairie 

Ridge Media, Inc., 987 N.E.2d 923, 929 (Ill. App. Ct. 2013). The 

IRPA defines identity as “any attribute of an individual that 

serves to identify that individual to an ordinary, reasonable 
No. 19-1831 15

viewer or listener, including but not limited to (i) name, (ii) 

signature, (iii) photograph, (iv) image, (v) likeness, or (vi) 

voice.” 765 ILCS 1075/5. Name, in turn, “means the actual 

name or other name by which an individual is known that is 

intended to identify that individual.” Id.

Dancel argues that all Instagram usernames are names or 

identities under the IRPA because an ordinary, reasonable 

viewer would know that a username is intended to identify 

one and only one user. Because a username is innately unique,

Dancel contends, the viewer would not need to know what 

the username is to know that it identifies an individual.

Dancel supports her categorical rule by comparing 

usernames to email addresses, but her analogy cuts against

her. In United States v. Hastie, 854 F.3d 1298 (11th Cir. 2017),

the Eleventh Circuit concluded that email addresses can qualify as “personal information” under the Driver’s Privacy Protection Act, 18 U.S.C. § 2721, which defines the term as “information that identifies an individual.” Hastie, 854 F.3d at 1301 

(citing 18 U.S.C. § 2725(3)). This was so, the court explained, 

because “[e]mail addresses often expressly include the account holder’s name, affiliated organization, or other identifying information.” Id. at 1303. As is critical for our purposes, 

the court did not hold that email addresses categorically identify an individual, only that they often did, and they often did 

so only because of their content, not their inherent nature as 

email addresses. See also Gov't Accountability Project v. U.S. 

Dep't of State, 699 F. Supp. 2d 97, 106 (D.D.C. 2010) (recognizing that email addresses “can be identified as applying to particular individuals” (emphasis added)).

A username’s content, and not its nature, is likewise necessary to decide whether it is an identity under the IRPA. 
16 No. 19-1831

Categorically, Instagram usernames identify only Instagram 

accounts. The IRPA, however, requires more than that. It demands that an attribute, even a name, serve to identify an individual. And not just an individual but “that individual,” the 

one whose identity is being appropriated. This is a comparative exercise that depends on both the specific individual and 

the specific appropriated attribute in question and cannot be 

solved categorically here. The common evidence that Dancel 

proposes she will provide—that usernames are unique, the 

Instagram Widget collected usernames, and Groupon’s deal 

pages delivered those usernames to visitors—does nothing to 

answer the question whether any given username identifies 

that specific individual who is behind that username and its 

associated account. So, when Dancel insists that she is not asking “whether any particular username identifies an individual,” she gives up the game. Whether the appropriated attribute serves to identify a particular person is, as the district 

court said, the “essence of determining ‘identity’ under the 

IRPA.” Dancel cannot answer this question for herself or for 

any putative class member with only her proposed common 

evidence, and so she cannot develop, for each class member, 

a common prima facie case under the identity element of an 

IRPA claim.

Dancel insists that this individualized inquiry is inconsistent with the IRPA’s broad scope, which is intended to protect lay people’s identities. She argues that the content of a 

username could matter only if the person needed to know to 

whom the username belonged from just the username itself. 

The Illinois common law had just such a “notoriety” element, 

whereby the plaintiff needed to show her identity had “intrinsic value,” like a celebrity’s might. Dwyer v. Am. Exp. Co., 652 

N.E.2d 1351, 1356 (Ill. App. Ct. 1995). As Dancel rightly notes, 
No. 19-1831 17

though, the IRPA has supplanted the common law right of 

publicity. 765 ILCS 1075/60; Trannel, 987 N.E.2d at 928. So, a

plaintiff need not show her identity has value to prove a claim 

under the IRPA. She still must show, however, that it is her

identity that the defendant appropriated. The Appellate 

Court in Tranell v. Prairie Ridge Media, thus, did not ask 

whether a reasonable person would know who Karen Tranell, 

winner of the 2009 McHenry County Living gardening contest, 

was based only on her photograph. 987 N.E.2d at 926. It did, 

however, emphasize that the photograph “depict[ed] plaintiff 

and her daughter smiling at the camera,” and reviewed several other photographs for whether the subjects were recognizable. Id. An individual’s photograph, like her name, is expressly protected by the IRPA, but that protection extends 

only so far as that photograph, that name, that username 

“serves to identify that individual to an ordinary, reasonable 

viewer.” 765 ILCS 1075/5 (emphasis added). Not all photographs, names, or usernames will do so, and whether any 

does must be answered with individual proof beyond the category into which the attribute falls.

Even if individual proof is necessary, Dancel proposes that 

she could provide it through class members’ affidavits attesting to their ownership of their usernames. We have permitted

district courts, in their discretion, to use individual affidavits

to identify class members after liability is established classwide, Mullins v. Direct Dig., LLC, 795 F.3d 654, 672 (7th Cir. 

2015), or to resolve individual merits questions after resolution of class issues, Beaton, 907 F.3d at 1030. Dancel’s proposal 

goes much further than this. She asks to use class members’ 

affidavits not to clean up individual questions left over after 

some other, common question has been decided, but to provide individual proof for the same question that she says can 
18 No. 19-1831

be resolved through common proof. Given this contradiction, 

we need not decide whether it would ever be permissible to 

resolve the IRPA’s identity element this way (for example if 

she had identified some other, predominating common question). The district court here did not abuse its discretion.

We emphasize that neither we nor the district court have 

decided the merits of any putative class member’s claim. 

Some Instagram usernames—maybe a great many of them—

might qualify as identities under the broad definition in the

IRPA. An ordinary, reasonable viewer might recognize that 

meowchristine serves to identify Christine Dancel, or that 

isa.tdg, artistbarbie, and loparse serve to identify their respective users. We cannot say. What we can say is, under the IRPA, 

that ordinary, reasonable viewer would need to have evidence of which username, which account, and which person 

it was linking before it could make that decision. This individualized evidentiary burden prevents identity from being a 

predominating common question under Rule 23(b)(3).

IV. Conclusion

We affirm the district court’s order denying class certification.