18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 675 disclosing personal information of users without obtaining consent. Defendant filed a motion to dismiss, which the Court denied. Plaintiff contended that Defendant allowed customers to perform free "people searches" on its website, after which it generated a preview page featuring the searched individual’s full name along with certain uniquely identifying information, including location, work history, and education. Plaintiff conceded that Defendant used this preview to sell a subscription service in which users could view all the information regarding the searched individual, without obtaining prior written consent. The Court noted that at the motion to dismiss stage, Plaintiff’s allegations were sufficient to state a claim. Defendant argued that the allegations fell within one or more of the IRPA’s exemptions, including: (i) that the First Amendment barred Plaintiff’s claims; (ii) that Defendant was immune from liability under the Communications Decency Act; (iii) and that Plaintiff’s claim was inconsistent commerce clause jurisprudence under the U.S. Constitution. The Court rejected all Defendant’s arguments. As to the First Amendment exemption, the Court explained that the degree of protection afforded by the First Amendment “depends on whether the activity sought to be regulated constitutes commercial or non- commercial speech." Id . at *7. Defendant argued that the database was only a "directory" that "does not propose a commercial transaction." Id. The Court, however, concluded that Plaintiff’s IRPA claim did not challenge her inclusion in Defendant’s "directory," but that the use of her identity without her consent to entice customers to purchase its subscription service was prohibited by the IRPA. For these reasons, the Court found that the claim was not exempted by the First Amendment protections. In addition, the Court reasoned that § 35(b)(2) of the IRPA exempts non-commercial uses of an individual’s identity, and Plaintiff sufficiently asserted that the use of her identity in free "previews" were used for commercial purpose of promoting Defendant’s subscription service, such that Defendant could not assert an affirmative defense under § 35(b)(2). Id . at *9. The Court also determined that the claim was not barred by the Communications Decency Act, which it explained only “applies to online forums serving as ‘a mere passive conduit for disseminating [actionable] statements.’" Id . at *10. The Court reasoned that Plaintiff’s allegations were not consistent with the inference that Defendant’s website was a “passive conduit.” Id . Finally, the Court opined that any exemption based on the commerce clause, which "precludes states and municipalities from erecting obstacles to interstate commerce even where Congress has not regulated" the subject area, could not be analyzed at the motion to dismiss stage. Id . at *11. Accordingly, the Court denied Defendant’s motion. Lukis, et al. v. Whitepages Inc., 2021 U.S. Dist. LEXIS 95658 (N.D. Ill. May 20, 2021). Plaintiff filed a class action alleging violations of the Illinois Right of Publicity Act(“IRPA”). The Court previously had denied Defendant’s motion to compel arbitration of or transfer Plaintiff’s claims, granted Plaintiff’s motion to add two new Plaintiffs, and granted Plaintiff’s motion to compel Defendant to produce information and documents about its non-party data providers and to present its witness for depositions on that subject. Id . at *1. Defendant appealed the Court’s denial of its motion to compel arbitration of Plaintiff’s claims, moved to dismiss, transfer, or compel arbitration of the two new Plaintiffs’ claims, and moved to stay or limit discovery on all three Plaintiffs’ claims. The Court denied the motions. It ordered Defendant to respond to the discovery as to all three Plaintiffs claims, finding that Defendant should have produced the documents and information long ago, and that it never should have instructed its witnesses to not answer questions regarding its data providers. Accordingly, the Court ruled that Defendant must supplement its responses to the interrogatories in question and make a supplemental document production, by May 26, 2021. The Court also ordered the parties to schedule a day and time for the resumed deposition of Defendant’s witness, so that he can answer the questions that Defendant improperly instructed him not to answer, as well as any appropriate follow-up questions. McGoveran, et al. v. Amazon Web Services , 2021 U.S. Dist. LEXIS 189633 (D. Del. Sept. 30, 2021). Plaintiff, a call center user, filed a class action alleging that Defendants violated the Illinois Biometric Information Act (“BIPA”) by collecting, possessing, disclosing, profiting from, and failing to safeguard callers’ biometric identifiers and biometric information, including their voiceprints. Plaintiffs alleged that they called the customer service department, and during the calls their voiceprints were recorded and submitted to a third-party, Defendant Pindrop, without informing callers. Plaintiff contended that the voiceprints would then be analyzed by Pindrop, and returned in a database of information resulting in the storage of biometric information on Defendant Amazon’s servers. Defendants moved to dismiss on the grounds that the complaint alleged an improper extraterritorial application of the BIPA, and alternatively, that the BIPA contains an exemption for financial institutions and thus Plaintiff failed to state plausible claims upon which relief could be granted. The Court granted the motion to dismiss based on the extraterritoriality defense. The Court explained that under Illinois