Kislov v. Am. Airlines, Inc.

• Decision Date: 08 October 2021
• Docket Number: 17 C 9080
• Parties: Alex KISLOV and Niko Hearn, individually and on behalf of similarly situated individuals, Plaintiffs, v. AMERICAN AIRLINES, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

566 F.Supp.3d 909

Alex KISLOV and Niko Hearn, individually and on behalf of similarly situated individuals, Plaintiffs,

v.AMERICAN AIRLINES, INC., a Delaware corporation, Defendant.

No. 17 C 9080

United States District Court, N.D. Illinois, Eastern Division.

Signed October 8, 2021

Colin Primo Buscarini, Timothy Patrick Kingsbury, McGuire Law P.C., Chicago, IL, for Plaintiffs Alex Kislov, Niko Hearn.

Mark W. Robertson, Pro Hac Vice, Sloane Ackerman, Pro Hac Vice, O'Melveny & Myers LLP, New York, NY, Humberto H. Ocariz, Pro Hac Vice, Shook, Hardy & Bacon L.L.P., Miami, FL, Paul Ehrich Bateman, Littler Mendelson, P.C., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United States District Judge

Alex Kislov and Niko Hearn (collectively, "Plaintiffs") allege that Defendant American Airlines, Inc. ("American") has violated various provisions of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. ("BIPA"). This case was filed initially in state court in 2017 by a different named plaintiff, Edward Kowalski, who was an employee of American. Defendant removed the case to federal court under the Class Action Fairness Act. See 28 U.S.C. §§ 1332(d), 1453. After protracted settlement negotiations and developments in BIPA litigation, American moved to dismiss for lack of subject matter jurisdiction—effectively a motion seeking judgment on the grounds that Plaintiff Kowalski's claim was subject to mandatory arbitration under the Railway Labor Act. The court then granted Kowalski leave to file an amended complaint to remedy the defects American had identified. In June 2021, Plaintiffs filed a Third Amended Complaint, replacing the original named plaintiff with Kislov and Hearn and asserting a new theory of BIPA liability. American has moved to dismiss for failure to state a claim [95], and Plaintiffs responded with a partial motion to remand [98] and a motion to stay [99] pending resolution of the motion to remand. The court grants the motion to remand and strikes the motion to stay as moot.

BACKGROUND

At this stage of the proceedings, the court accepts the allegations in the Third Amended Complaint ("TAC") as true. American is a Delaware corporation doing business in Illinois.¹ (TAC [93] ¶ 5.) It operates a global fleet of aircraft making thousands of flights per day and provides a 24-hour customer service hotline. (Id. ¶¶ 22–23.) Beginning in approximately July 2011, Defendant integrated "Interactive Voice Response" ("IVR") software into its customer service hotline in order to "better achieve customer service goals and reduce call agent volumes." (Id. ¶ 24.) Defendant uses a cloud-based IVR software that "saves all of the data obtained during the phone call in a cloud based server" managed by a third-party software provider. (Id. ¶ 25; see id. ¶ 75.) Defendant's IVR software "collects and analyzes callers’ actual voiceprints to understand the caller's request and to automatically respond with a personalized response," rather than a menu of options. (Id. ¶ 25.) Defendant's own IVR software vendor has publicly stated that the software uses "voice biometrics." (Id. ¶ 26.) Plaintiffs further allege that the software collects and stores individuals’ unique voiceprints to track whether an individual has previously interacted with the company. (Id. ¶ 27.)

Plaintiffs Alex Kislov and Niko Hearn are residents and citizens of Illinois. (Id. ¶ 4.) Kislov called American's customer service hotline in December 2019 from within the state of Illinois. (Id. ¶ 34.) According to Kislov, he was greeted by a recorded voice stating that the call may be recorded for quality control purposes. (Id. ¶ 34.) An automated voice then asked how it could assist him. (Id. ) Plaintiff alleges that when he vocally interacted with the IVR software, "it captured and stored the unique biometric signatures of his voice, i.e. , his voiceprint." (Id. ) Plaintiff Hearn has called American's customer service hotline multiple times since December 2020 while in the state of Illinois. (Id. ¶ 35.) The purpose of these calls was to resolve issues pertaining to flights departing from Illinois. (Id. ) Hearn alleges that when he vocally interacted with American's IVR software, it captured and stored his voiceprint. (Id. ) Both Plaintiffs allege they were unaware that American's software collected, analyzed, and stored their unique voiceprints. (Id. ¶¶ 36, 38.) Despite coming into possession of Plaintiffs’ biometric information, Plaintiffs allege, Defendant "failed to establish a publicly-available biometric retention and destruction policy as required by law." (Id. ¶ 38.) American also failed to obtain Plaintiffs’ informed written consent to collect, capture, or store their biometric data. (Id. ¶ 39.) Finally, Defendant disclosed or disseminated Plaintiffs’ voice biometrics to the IVR software vendor, again without their consent. (Id. ¶ 40.)

Enacted in 2008, the BIPA protects Illinois residents’ privacy interests in their biometric information. See Rosenbach v. Six Flags Ent. Corp. , 2019 IL 123186, ¶ 33, 432 Ill.Dec. 654, 129 N.E.3d 1197, 1206 (Ill. 2019). The Act defines "biometric information" as "any information, regardless of how it is captured, converted, stored, or shared, based on an individual's biometric identifier used to identify an individual." 740 ILCS 14/10. In turn, "biometric identifier" means "a retina or iris scan, fingerprint, voiceprint , or scan of hand or face geometry." Id. (emphasis added).² By its nature, a biometric identifier cannot be changed: "once compromised, the individual has no recourse [and] is at heightened risk for identity theft." 740 ILCS 14/5(c). Section 15 of the Act regulates the possession, collection, retention, disclosure, and dissemination of biometric information and biometric identifiers by private entities. See 740 ILCS 14/15(a) – (e). The Act defines "private entity" broadly to include "any individual, partnership, corporation, limited liability company, association, or other group, however organized."

740 ILCS 14/10. Section 20 provides a private right of action for persons aggrieved by a violation of the Act, who may receive statutory damages, attorneys’ fees, and injunctive relief.

Plaintiffs allege that American is a "private entity" within the meaning of BIPA (TAC ¶ 51), and that Defendant violated BIPA "by collecting, possessing, and disclosing their voiceprint identifiers without complying with BIPA's mandates." (Id. ¶ 1.) They bring three counts against American for various BIPA violations, on behalf of themselves and a class of similarly situated individuals. The proposed class, subject to exclusions not relevant here, is defined as:

All individuals whose biometric identifiers and/or biometric information were captured, collected, obtained, stored, or used by Defendant within the state of Illinois any time within the applicable limitations period.

(Id. ¶ 42.) Count I alleges that Defendant "failed to make publicly available any policy addressing its biometric retention and destruction practices," in violation of Section 15(a). (Id. ¶ 54.) That provision requires private entities in possession of biometric data to "develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever comes first." (Id. ¶ 53 (quoting 740 ILCS 14/15(a) ).) Count II alleges violations of Section 15(b), which prohibits a private entity from collecting or otherwise obtaining biometric data unless it first "(1) informs the subject or the subject's legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored; (2) informs the subject or the subject's legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and (3) receives a written release executed by the subject of the biometric identifier or biometric information or the subject's legally authorized representative." (Id. ¶ 63 (quoting 740 ILCS 14/15(b) ); see TAC ¶¶ 64–66.) Count III alleges that Defendant disclosed or otherwise disseminated Plaintiffs’ biometric data to third parties without their consent, in violation of Section 15(d). (Id. ¶¶ 75–77.)

DISCUSSION

In a diversity case, an out-of-state defendant may remove from state court any action filed there that could properly have been filed in federal court. See 28 U.S.C. § 1441(a), (b)(2). "The party seeking removal has the burden of establishing federal jurisdiction." Schur v. L.A. Weight Loss Ctrs. , 577 F.3d 752, 758 (7th Cir. 2009). The Seventh Circuit has cautioned that "federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Id. A plaintiff opposing removal may move to remand the case to state court. See 28 U.S.C. § 1447(c). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Id. (emphasis added); see GE Betz, Inc. v. Zee Co. , 718 F.3d 615, 625–26 (7th Cir. 2013).

Plaintiffs in this case are not requesting remand of the entire action to state court. Instead, they have moved to sever and remand Count I, citing authority holding that they lack Article III standing to pursue that claim in federal court. Second, Plaintiffs move to stay briefing on Defendant's Rule 12(b)(6) motion to dismiss pending resolution of their motion to remand.³

I. Motion to Remand

In Count I, Plaintiffs allege that American violated Section 15(a) of BIPA by failing to "make publicly available any policy addressing its biometric retention and...