## Facts

- American Express analyzed cardholder transaction data (e.g., where cardholders shopped and how much they spent) and assigned marketing-oriented classifications.
- Using these classifications and purchasing patterns, American Express created targeted marketing lists and rented them to participating merchants.
- American Express also ran joint-marketing programs by sending merchant promotions to selected cardholders and sharing profits from resulting sales.
- After public reporting about these practices, cardholders filed a putative class action alleging (1) intrusion upon seclusion, (2) commercial appropriation of personal information/identity, and (3) violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (and similar statutes elsewhere).
- The circuit court dismissed the privacy tort and consumer fraud claims for failure to state a claim; plaintiffs appealed.

## Issues

1. Whether compiling transaction-derived profiles and renting targeted marketing lists stated a claim for intrusion upon seclusion under Illinois law.
2. Whether using cardholders’ names and transaction-based profiles in marketing lists stated a claim for appropriation of name or likeness (commercial appropriation).
3. Whether nondisclosure of the list-rental program stated an Illinois Consumer Fraud Act claim where plaintiffs alleged no concrete loss beyond receiving additional solicitations.

## Decision

- The appellate court affirmed dismissal of the complaint.
- The court held plaintiffs failed to plead intrusion upon seclusion because the alleged conduct was not an unauthorized, highly offensive prying comparable to surveillance, eavesdropping, or physical intrusion.
- The court held plaintiffs failed to plead appropriation because individual cardholders’ names lacked independent commercial value; the value was in the proprietary, segmented list created by American Express.
- The court held plaintiffs failed to plead consumer fraud because they did not allege actual damages; increased unwanted mail was not compensable injury under the Act.

## Legal Principles

- Intrusion upon seclusion requires an unauthorized, highly offensive intrusion into private affairs; secondary use or analysis of information voluntarily provided in ordinary transactions, without prying conduct, does not satisfy the tort.
- Appropriation of name or likeness requires use of an individual’s identity for commercial advantage where the identity itself has commercial value; selling a compiled marketing list whose value lies in segmentation and selection does not, by itself, appropriate each listed individual’s identity.
- An Illinois Consumer Fraud Act claim requires actual damages; annoyance or nuisance from additional solicitations, without pleaded economic or concrete injury, is insufficient.

## Conclusion

The court held that American Express’s creation and rental of transaction-based marketing lists did not constitute intrusion upon seclusion or appropriation of identity under Illinois privacy tort law, and that nondisclosure of the practice did not support a consumer fraud claim absent pleaded actual damages.


Dwyer v. Am. Express Co., 273 Ill. App. 3d 742, 652 N.E.2d 1351 (Ill. App. Ct. 1st Dist. 1995)