Woman files class action suit against testing agencies over alleged sale of personal information

By Bethany Krajelis | Nov 4, 2013

A woman has brought a class action lawsuit against a pair of companies that administer college entrance exams, claiming they sold test-takers’ personal information to third parties.

A woman has brought a class action lawsuit against a pair of companies that administer college entrance exams, claiming they sold test-takers’ personal information to third parties.

Rachel Spector filed the suit late last month in Chicago’s federal court against ACT Inc. and The College Board (TCB), alleging breach of contract, invasion of privacy, unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Practices Act.

In her suit, Spector claims the amount in controversy exceeds $5 million and that the amount of potential class members is in the millions.

The defendants administer for a fee the ACT and SAT college entrance exams, as well as advanced placement and other tests, to more than 1.6 million high school students each year, according to the complaint that notes Spector took the exams during the 2009-2010 school year and is now the age of majority.

Spector contends that in the course of the defendants’ business, they obtained the students’ personally identifiable information (PII), including their name, address, date of birth, social security number, phone number, self-reported grade point averages, educational background and interests.

“The Defendants deceived the Plaintiff and the Class by masking the sale of the Plaintiff’s and Class’ PII under the guise of ‘sharing,’ i.e., the Defendants ask whether the Plaintiff and Class (who at the time were under the age of majority) would like their PII ‘shared’ with other outside agencies,” the suit states.

It adds, “In reality, the Defendants ‘sell’ the Plaintiff’s and Class’ PII for substantial profit – on information and belief approximately $.33 per student, per buyer—to hundreds if not thousands of ‘buyers’ per year who purchase the Plaintiff’s and Class’ PII from the Defendants.”

Spector claims in her suit that ACT has an “opt-out” approach to the sale of the personal information that requires “a minor-aged student who lacks the capacity to contract to affirmatively opt-out of the Defendant’s ‘sharing program,’ which is actually a ‘sales’ program, or else his or her information will be sold by ACT for monetary gain.”

She asserts that “the fact” the ACT sells the PII was at no time disclosed to her or the other potential class members.

The personal information at issue in the suit is the type of information that both federal and state lawmakers have worked to protect and secure from disclosure, Spector alleges in her suit that accuses the defendants of trying to circumvent privacy and student records laws “with one goal in mind: profit.”

Spector seeks to bring the class action suit on behalf of all persons throughout the U.S. who registered and sat for the ACT or SAT exams from 2003 to the date of judgment and whose personal information was sold by the defendants to third parties.

She claims that in deciding not to opt-out of the defendant’s “sharing program,” she and potential class members “reasonably relied upon the truth of the Defendants’ representations and reasonably believed that the Defendants would ‘share,’ not sell, their PII.”

The suit, which dubs the defendants’ conduct as “unfair, immoral, unjust, oppressive and unscrupulous,” claims that Spector and potential class members have suffered and will suffer damages as a result of the defendants’ misrepresentations.

Those damages include the fee paid for the examinations with interest, the loss of monies plus interest paid to and/or received by the Defendants for the Plaintiff’s and Class’ PII, and the loss of the value of their PII, plus interest,” according to the complaint.

Chicago attorney Larry D. Drury brought the suit on behalf of Spector and others similarly situated.

Spector wants the federal court to certify the suit as a class action with her  as the class representative, Drury as lead class counsel and James R. Rowe and Robert A. Langendorf as class counsel.


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