A judge has grounded a lawsuit which claimed American Airlines violated Illinois' biometric privacy law by creating so-called "voiceprints" of people calling the airlines customer service line.
In her ruling, the judge found federal deregulation law heads off application of the Illinois law on air carriers.
Myles McGuire
| mcgpc.com
Plaintiffs Alex Kislov and Niko Hearn, both Illinois residents, filed a class action in June 2021 against American Airlines, which is based in Fort Worth, Texas, alleging the airline breached the Illinois Biometric Information Privacy Act (BIPA). American's hub for the Midwest is O'Hare International Airport in Chicago.
According to the suit, American has integrated "interactive voice response" software into its customer service hotline, which analyzes and stores callers' voiceprints. The purpose is to understand or predict callers' requests, then automatically respond with a personalized answer, track interactions with callers and shorten hold times.
Plaintiffs asserted their voiceprints were captured by the airline's system without their written consent, as required by the BIPA law. In addition, they claimed American further violated BIPA by sharing the prints with its software vendor.
The lawsuit was initially filed in Cook County Circuit Court, and leveled three counts against the airline under the BIPA law. A third count accused American Airlines of failing to publish guidelines and a schedule informing customers of how the company may retain and ultimately destroy their scanned voiceprints.
American Airlines removed the case to federal court, seeking to extract the case from Cook County's jurisdiction and win dismissal.
The plaintiffs and the airline squared off in court over the question of whether the plaintiffs could press their claims, and in which court the case should be heard. The plaintiffs sought to send the case back to Cook County.
Judge Pallmeyer decided to address each count separately. She chose to keep two counts in federal court, and send the count related to the data retention guidelines back to Cook County, because she determined the plaintiffs could not demonstrate they had suffered any real injury from the alleged failure to publish guidelines.
To press claims in federal court, plaintiffs must establish so-called Article III standing, by proving they were actually harmed by a violation of the law. In Illinois, however, the state's Supreme Court has ruled plaintiffs suing under BIPA don't need to assert they were actually harmed. They need only allege the technical provision of the law was violated to press potentially massive class actions under the BIPA law.
The law allows plaintiffs to demand damages of $1,000-$5,000 per violation, which could quickly add up to many millions or even billions of dollars in damages, depending on how many biometric scans a company is accused of having conducted.
The case remains pending in Cook County court.
American Airlines asked Judge Pallmeyer to throw out the action, contending the 1978 U.S. Airline Deregulation Act bars such a suit.
The airline followed that with a motion to dismiss the Cook County court case on March 18. American Airlines argued any alleged failure to post a data retention schedule and guidelines is little more than a "generalized grievance," which should not allow them to press their individualized claims. A judge has not yet ruled on the motion to dismiss the Cook County case.
In Pallmeyer's March 22 decision, the judge quoted a 1992 U. S. Supreme Court ruling, noting the Airline Deregulation Act contains a provision to "ensure that the States would not undo federal deregulation with regulation of their own," with certain exceptions. Further case law has held that a service furnished by an airline that is "bargained for" between the airline and a customer, and is a service over which carriers compete, is not one of the exceptions, according to Pallmeyer.
In Pallmeyer's view, customers consider the quality of customer service in deciding to buy a ticket with a particular airline, and carriers compete over such service.
"While customers may not bargain for the collection of their biometrics through voice recognition software, they do bargain for customer assistance. The Complaint itself alleges that American implemented the voice recognition software 'to better achieve customer service goals' through personalization and reduced hold times — and, presumably, to attract customers and gain a competitive advantage over other airlines," Pallmeyer wrote.
Pallmeyer noted that for American to comply with BIPA, as demanded by plaintiffs, American would have to provide written notice and obtain written consent from any Illinois callers before furnishing customer service over the hotline.
Worsening the situation, in Pallmeyer's eyes, American would have to determine whether any phone interactions occurred substantially in Illinois, or whether the caller could so claim. This requirement could be "so burdensome as to completely undermine the value of American's voice response software altogether," Pallmeyer said.
The trouble doesn't stop there, according to Pallmeyer, who added that American could also have to deal with a "patchwork" of varying state privacy laws if BIPA was imposed.
The judge brushed aside plaintiffs' argument a person, who is not a customer or potential customer, could misdial and inadvertently make a call to the hotline, with their voiceprint then being collected.
"This misdealing speculation is just that — speculation," Pallmeyer observed.
Pallmeyer concluded the BIPA law claims leveled by plaintiffs "directly impact American’s interactions with its customers, and directly regulate the airline’s provision of services" and "that state law inherently interferes with the Airline Deregulation Act."
The judge tossed the suit, but gave plaintiffs 28 days from March 22 to amend their complaint and make another attempt at the case.
Plaintiffs have been represented by the following lawyers with the Chicago firm of McGuire Law: Brendan J. Duffner, Evan M. Meyers, Myles P. McGuire, Timothy P. Kingsbury, William P.N. Kingston and Colin P. Buscarini.
American has been defended by Paul E. Bateman and Lavanga V. Wijekoon of Littler Mendelson, of Chicago; Mark W. Robertson, Sloane Ackerman and Charles J. Mahoney, of O'Melveny & Myers, of New York City; and Humberto H. Ocariz, of the Miami office of the Kansas City-based Shook, Hardy & Bacon.
Jonathan Bilyk contributed to this report.