A new class action lawsuit accuses the companies that operate popular chain restaurants, including Portillo’s, Red Lobster, Applebee’s, Noodles & Company, Blaze Pizza and Chipotle Mexican Grill, of improperly recording customers’ voices without authorization through their automated phone ordering systems.
Attorney Carl V. Malmstrom and others with the firms of Wolf Haldenstein Adler Freeman & Herz, of Chicago, and Bursor & Fisher, of New York, filed the lawsuit in Cook County Circuit Court on Aug. 24.
The lawsuit was filed on behalf of named plaintiffs April Guy-Powell, of Harvard, Illinois; Elizabeth Butucea Boscoianu, of Broadview; Kevin Harris, of DeKalb; and Michelle Gilliam, of Chicago.
From left: Attorneys Carl Malmstrom and Joseph Marchese
| Wolf Haldenstein; Bursor & Fisher
The lawsuit takes aim at the restaurant operators’ use of a so-called automated voice ordering system to handle phone orders. According to the complaint, all of the defendants have used a version of the AVO system since at least 2017.
The lawsuit asserts all of the restaurants’ AVO systems operate using the same technology, an artificial intelligence voice assistant, which can take customer orders over the phone, answer common and basic customer questions, and handle other customer service needs.
According to the complaint, the A.I. was developed by tech firm SYNQ3 and rolled out by vendor Interactions.
SYNQ3 and Interactions are also named as defendants in the action.
According to the complaint, the AVO systems in question in the case routinely record customers’ voices, creating a template using their speech recognition software. Allegedly, the processes allow the AVO system to become more accurate over time and provide customers with a “tailored experience.”
However, according to the complaint, the defendants’ AVO system processes allegedly violated Illinois’ stringent biometrics privacy law, known as the Biometric Information Privacy Act.
According to the complaint, the defendants’ AVO systems allegedly recorded, analyzed, stored and shared customers’ “voiceprints” without first obtaining customer authorization or providing customers with notices allegedly required under the BIPA law concerning how their so-called biometric identifying information would be stored, used, shared and ultimately destroyed.
According to the complaint, plaintiff Guy-Powell used Chipotle’s AVO system in June 2022 and Noodles & Company’s system in July 2022.
Boscoianu allegedly used Applebee’s AVO system in February 2022 and Red Lobster’s in March 2022.
Harris allegedly used Applebee’s AVO system in March 2022; Chipotle’s system in May 2022; Noodles & Company’s system in February 2022; and Portillo’s system in August 2022.
And Gilliam allegedly used Blaze Pizza’s AVO system and Portillo’s system, both in January 2021.
The lawsuit marks the latest class action among a rising tide of thousands of such lawsuits brought against businesses of all kinds under the Illinois biometrics law since at least 2015.
The bulk of such lawsuits have, so far, targeted employers in Illinois who require workers to scan fingerprints to verify their identity when punching the clock to begin and end work shifts, or to access secure areas within a workplace, like a medicine locker or cash room.
However, a growing number of BIPA class actions have also taken aim at restaurants, stores and other public-facing businesses that use automated systems to scan and recognize customers’ faces, voices or other biometric identifiers. Businesses have asserted the systems are useful to improve customer service, reduce theft or improve public safety within their facilities, depending on the system.
Plaintiffs, however, have asserted the businesses must first provide notice concerning the recordings and scans, and secure customer consent, before recording and analyzing their faces, voices or other biometric identifiers.
The risk to businesses from these lawsuits is also large. Under the law, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation. The law has been interpreted to define individual violations as each time a business scans a biometric identifier. When multiplied across thousands of potential customers, this could quickly drive the damages well into the many millions, or even billions of dollars, depending on the size of the company and its level of interaction with users and customers.
Facebook and Google, for instance, have each agreed to settle BIPA class actions against them for $650 million and $100 million, respectively, over accusations the tech giants’ photo services improperly scanned the faces of people featured in photos uploaded to their platforms and apps. Court documents had indicated the companies could have potentially faced damages worth billions of dollars, if the cases had gone to trial.
In the case against the restaurants over AVO systems, the plaintiffs are seeking the statutory damages of $1,000-$5,000 per violation.
They are also seeking to expand the action to include potentially thousands of other Illinois restaurant customers who used the restaurants’ AVO systems.
Named defendants in the lawsuit include Applebee’s Restaurants LLC; Blaze Pizza LLC; Chipotle Mexican Grill Inc.; Dine Brands Global Inc; Interactions LLC: Noodles & Company; Portillo’s Inc.; Red Lobster Hospitality LLC; Red Lobster Management LLC; Red Lobster Restaurants LLC; Red Lobster Seafood Co. LLC; SYNQ3 Inc.; and SYNQ3 Restaurant Solutions LLC.
Attorneys for the plaintiffs include Malmstrom, of Wolf Haldenstein; and Joseph I. Marchese and Philip L. Fraietta, of Bursor & Fisher.