Dwyer v. American Express Co.

Appellate Court of Illinois, First District · 1995 · Property

PropertyPrivacyConsumer Fraudinvasion of privacyintrusion upon seclusionappropriationname or likenesstargeted marketing

Facts

According to the complaint, defendants analyzed their cardholders' shopping locations, spending amounts, behavioral characteristics, and spending histories, then categorized cardholders into marketing tiers and rented lists to merchants for targeted advertising. Defendants also created lists targeting purchasers of certain goods and conducted joint-marketing ventures in which they mailed merchant promotions to cardholders and shared resulting profits. Plaintiffs alleged that these practices intruded on their seclusion, appropriated their personal spending habits and identities, and violated consumer fraud law. Plaintiffs also alleged defendants did not disclose that card-usage information would be used in this manner.

Issue

Whether defendants' practice of compiling and renting targeted mailing lists from cardholder transaction information stated claims for invasion of privacy under theories of intrusion upon seclusion and appropriation, and whether plaintiffs stated a claim under the Illinois Consumer Fraud Act. More specifically, the court had to decide whether the alleged conduct was an unauthorized intrusion or appropriation and whether plaintiffs alleged actionable damages under the Act.

Rule

For intrusion upon seclusion, the court applied the first Melvin element requiring an unauthorized intrusion or prying into the plaintiff's seclusion, and held that compiling and renting information voluntarily given to the defendant and contained in its own records is not such an unauthorized intrusion on these facts. For appropriation, the court stated the elements as an appropriation, without consent, of one's name or likeness for another's use or benefit, and held there is no appropriation where an individual name has little or no intrinsic value apart from its inclusion in an aggregated marketing list and the practice does not deprive the individual of any value in the name. For a deceptive-practice claim under the Illinois Consumer Fraud Act, a plaintiff must allege a material misrepresentation or concealment, intent that plaintiff rely, and conduct in trade or commerce, but a private plaintiff must also have suffered damage as a result of the violation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Denver, Nora Patel joins Pine Summit Books' loyalty program and uses the card for every purchase. Pine Summit analyzes the titles she buys, sorts customers into categories such as "historical fiction readers," and rents only names and mailing addresses from those categories to publishers who send catalogs. Nora sues for intrusion upon seclusion.

How should a court rule on Nora's intrusion claim under the governing reasoning?

Explanation. The majority held that the first intrusion element—unauthorized intrusion or prying into the plaintiff's seclusion—is not satisfied where the defendant compiles information voluntarily and necessarily given to it and contained in its own records, then rents a list used only to target advertising. The reasoning rejects treating that conduct as unauthorized prying or as disclosure of specific private financial details.