PATRICK E. DWYER v. AMERICAN EXPRESS COMPANY
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

273 Ill. App. 3d 742; 652 N.E.2d 1351; 1995 Ill. App. LEXIS
483; 210 Ill. Dec. 375

 
 June 30, 1995, Decided

Appeal from the Circuit Court of Cook County. Honorable Edward C.
Hofert, Judge Presiding.

JUSTICE BUCKLEY delivered the opinion of the court: RAKOWSKI and 
CAHILL, JJ., concur.

JUSTICE BUCKLEY delivered the opinion of the court:

   Plaintiffs, American Express cardholders, appeal the circuit 
court's dismissal of their claims for invasion of privacy and 
consumer fraud against defendants, American Express Company, 
American Express Credit Corporation, and American Express Travel 
Related Services Company, for their practice of renting 
information regarding cardholder spending habits.

   On May 13, 1992, the New York Attorney General released a press 
statement describing an agreement it had entered into with 
defendants. The following day, newspapers reported defendants' 
actions which gave rise to this agreement. According to the news 
articles, defendants categorize and rank their cardholders into 
six tiers based on spending habits and then rent this information   
to participating merchants as part of a targeted joint-marketing 
and    sales program. For example, a cardholder may be 
characterized as "Rodeo Drive Chic" or "Value Oriented." In order 
to characterize its cardholders, defendants analyze where they 
shop and how much they spend, and also consider behavioral 
characteristics and spending histories. Defendants then offer to 
create a list of cardholders who would most likely shop in a 
particular store and rent that list to the merchant.

   Defendants also offer to create lists which target cardholders 
who purchase specific types of items, such as fine jewelry. The 
merchants using the defendants' service can also target shoppers 
in categories such as mail-order apparel buyers, home-improvement 
shoppers, electronics shoppers, luxury lodgers, card members with 
children, skiers, frequent business travelers, resort users, 
Asian/European travelers, luxury European car owners, or recent 
movers. Finally, defendants offer joint-marketing ventures to 
merchants who generate substantial sales through the American 
Express card. Defendants mail special promotions devised by the 
merchants to its cardholders and share the profits generated by 
these advertisements.

   On May 14, 1992, Patrick E. Dwyer filed a class action against 
defendants. His complaint alleges that defendants intruded into 
their cardholders' seclusion, commercially appropriated their 
cardholders' personal spending habits, and violated the Illinois 
consumer fraud statute and consumer fraud statutes in other 
jurisdictions. Maria Teresa Rojas later filed a class action 
containing the same claims. The circuit court consolidated the two 
actions. Plaintiffs moved to certify the class, add parties, and 
file an amended, consolidated complaint. Defendants moved to 
dismiss the claims. The parties fully briefed the motions to 
dismiss and to certify the class. After hearing argument on the 
motion to dismiss, the circuit court granted that motion and 
denied plaintiffs' motions as moot. Plaintiffs appeal the circuit 
court order.

   Plaintiffs have alleged that defendants' practices constitute 
an invasion of their privacy and violate the Illinois Consumer 
Fraud and Deceptive Business Practices Act (Act or Consumer Fraud 
Act) (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261 et seq. (now 815 
ILCS 505/1 et seq. (West 1992))). For the reasons discussed below, 
we find that plaintiffs have not stated a cause of action under 
either of these theories.
 
Invasion of Privacy

   There are four branches of the privacy invasion tort identified 
by the Restatement (Second) of Torts. These are: (1) an 
unreasonable intrusion upon the seclusion of another; (2) an 
appropriation of another's name or likeness; (3) a public 
disclosure of private facts; and (4) publicity which reasonably 
places another in a false light before the public. (Restatement 
(Second) of Torts @@ 652B, 652C, 652D, 652E, at 378-94 (1977); W. 
Keeton, Prosser & Keeton on Torts @ 117, at 849-69 (5th ed. 
1984).) Plaintiffs' complaint includes claims under the first and 
second branches.

   As a preliminary matter, we note that a cause of action for 
intrusion into seclusion has never been recognized explicitly by 
the Illinois Supreme Court. In Lovgren v. Citizens First National 
Bank (1989), 126 Ill. 2d 411, 534 N.E.2d 987, 128 Ill. Dec. 542, 
the supreme court discussed this tort as enunciated by the 
Restatement and Prosser, but stated that its discussion did not 
imply a recognition of the action by the court. (Lovgren, 126 Ill. 
2d at 416-17, 534 N.E.2d at 988-89.) The court concluded that the 
defendants' alleged actions in that case did not constitute an 
unreasonable intrusion into the seclusion of another and declined 
to address the conflict among the appellate court districts as to 
whether the cause of action should be recognized in this State. * 
Lovgren, 126 Ill. 2d at 417, 534 N.E.2d at 989.
 
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   * At that time, the cause of action had been recognized by the 
fifth district in Bank of Indiana v. Tremunde (1977), 50 Ill. App. 
3d 480, 365 N.E.2d 295, 8 Ill. Dec. 57, and the third district in 
Melvin v. Burling (1986), 141 Ill. App. 3d 786, 490 N.E.2d 1011, 
95 Ill. Dec. 919. The first and fourth districts had held that the 
cause of action was not recognized in Illinois. See Kelly v. 
Franco (1979), 72 Ill. App. 3d 642, 391 N.E.2d 54, 28 Ill. Dec. 
855; Bureau of Credit Control v. Scott (1976), 36 Ill. App. 3d 
1006, 345 N.E.2d 37.
 
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   In 1979, this district declined to entertain a cause of action 
for intrusion into the seclusion of another in Kelly v. Franco 
(1979), 72 Ill. App. 3d 642, 391 N.E.2d 54, 28 Ill. Dec. 855. In 
Kelly, the plaintiffs contended that the defendant repeatedly made 
phone calls to their home, only to hang up when one of the 
plaintiffs answered. The plaintiffs also alleged that the 
defendant verbally threatened and abused them and harassed their 
son. (Kelly, 72 Ill. App. 3d at 644, 391 N.E.2d at 56.) This court 
noted that the law in Illinois was inconsistent on this matter and 
held that even if it were to recognize such a cause of action the 
plaintiff's allegations were insufficient to support a cause of 
action for unreasonable intrusion into another's seclusion. Kelly, 
72 Ill. App. 3d at 646-47, 391 N.E.2d at 58.

   The third district recognized the intrusion tort in Melvin v. 
Burling (1986), 141 Ill. App. 3d 786, 490 N.E.2d 1011, 95 Ill. 
Dec. 919, seven years after Kelly. In Melvin, the court set out 
four elements which must be alleged in order to state a cause of 
action: (1) an unauthorized intrusion or prying into the 
plaintiff's seclusion; (2) an intrusion which is offensive or 
objectionable to a reasonable man; (3) the matter upon which the 
intrusion occurs is private; and (4) the intrusion causes anguish 
and suffering. (Melvin,   141 Ill. App. 3d at 789, 490 N.E.2d at 
1013-14.) Since the third district set out the four elements in 
Melvin, this district has applied these elements without directly 
addressing the issue of whether the cause of action exists in this 
State. In Mucklow v. John Marshall Law School (1988), 176 Ill. 
App. 3d 886, 531 N.E.2d 941, 126 Ill. Dec. 314, and again in 
Miller v. Motorola, Inc. (1990), 202 Ill. App. 3d 976, 560 N.E.2d 
900, 148 Ill. Dec. 303, this district held that the plaintiff's 
allegations did not satisfy the first element of Melvin, without 
expressing a view as to the conflict regarding the recognition of 
the cause of action. Mucklow, 176 Ill. App. 3d at 894, 531 N.E.2d 
at 946; Miller, 202 Ill. App. 3d at 981-82, 560 N.E.2d at 904.

   Plaintiffs' allegations fail to satisfy the first element, an 
unauthorized intrusion or prying into the plaintiffs' seclusion. 
The alleged wrongful actions involve the defendants' practice of 
renting lists that they have compiled from information contained 
in their own records. By using the American Express card, a 
cardholder is voluntarily, and necessarily, giving information to 
defendants that, if analyzed, will reveal a cardholder's spending 
habits and shopping preferences. We cannot hold that a defendant 
has committed an unauthorized intrusion by compiling the 
information voluntarily given to it and then renting its 
compilation.

   Plaintiffs claim that because defendants rented lists based on 
this compiled information, this case involves the disclosure of 
private financial information and most closely resembles cases 
involving intrusion into private financial dealings, such as bank 
account transactions. Plaintiffs cite several cases in which 
courts have recognized the right to privacy surrounding financial 
transactions. See Zimmermann v. Wilson (3d Cir. 1936), 81 F.2d 847 
(holding examination of information in taxpayers' bank books would 
violate the taxpayers' privacy rights); Brex v. Smith (1929), 104 
N.J. Eq. 386, 146 A. 34 (upholding claim for unauthorized 
intrusion into the plaintiff's bank account); Hickson v. Home 
Federal (N.D. Ga. 1992), 805 F. Supp. 1567 (finding bank 
disclosure to credit bureau of borrower's loan payment delinquency 
could violate borrower's right to privacy); Suburban Trust Co. v. 
Waller (1979), 44 Md. App. 335, 408 A.2d 758 (holding bank cannot 
reveal information about customers' account or transaction unless 
compelled by legal process); Mason v. Williams Discount Center, 
Inc. (Mo. 1982), 639 S.W.2d 836 (finding store's posting of names 
of bad check risks invades plaintiff's privacy).

   However, we find that this case more closely resembles the sale 
of magazine subscription lists, which was at issue in Shibley v. 
Time, Inc. (1975), 45 Ohio App. 2d 69, 341 N.E.2d 337. In Shibley, 
the plaintiffs claimed that the defendant's practice of selling 
and renting magazine subscription lists without the subscribers' 
prior consent "constituted an invasion of privacy because it 
amounted to a sale of individual 'personality profiles,' which 
subjects the subscribers to solicitations from direct mail 
advertisers." (Shibley, 45 Ohio App. 2d at    , 341 N.E.2d at 
339.) The plaintiffs also claimed that the lists amounted to a 
tortious appropriation of their names and "personality profiles." 
The trial court dismissed the plaintiffs' complaint and the Court 
of Appeals of Ohio affirmed. Shibley, 45 Ohio App. 2d at    , 341 
N.E.2d at 339.

   The Shibley court found that an Ohio statute, which permitted 
the sale of names and addresses of registrants of motor vehicles, 
indicated that the defendant's activity was not an invasion of 
privacy. The court considered a Federal district court case from 
New York, Lamont v. Commissioner of Motor Vehicles (S.D.N.Y. 
1967), 269 F. Supp. 880, aff'd (2d Cir. 1967) 386 F.2d 449 cert. 
denied (1968), 391 U.S. 915, 20 L. Ed. 2d 654, 88 S. Ct. 1811, to 
be insightful. In Lamont, the plaintiff claimed an invasion of 
privacy arising from the State's sale of its list of names and 
addresses of registered motor-vehicle owners to mail-order 
advertisers. The Lamont court held that however "noxious" 
advertising by mail might be, the burden was acceptable as far as 
the Constitution is concerned. (Lamont, 269 F. Supp. at 883.) The 
Shibley court followed the reasoning in Lamont and held:

   "The right to privacy does not extend to the mailbox and 
therefore it is constitutionally permissible to sell subscription 
lists to direct mail advertisers. It necessarily follows that the 
practice complained of here does not constitute an invasion of 
privacy even if appellants' unsupported assertion that this 
amounts to the sale of 'personality profiles' is taken as true 
because these profiles are only used to determine what type of 
advertisement is to be sent." Shibley, 45 Ohio App. 2d at    , 341 
N.E.2d at 339-40.

   Defendants rent names and addresses after they create a list of 
cardholders who have certain shopping tendencies; they are not 
disclosing financial information about particular cardholders. 
These lists are being used solely for the purpose of determining 
what type of advertising should be sent to whom. We also note that 
the Illinois Vehicle Code authorizes the Secretary of State to 
sell lists of names and addresses of licensed drivers and 
registered motor-vehicle owners. (625 ILCS 5/2--123 (West 1992).) 
Thus, we hold that the alleged actions here do not constitute an 
unreasonable intrusion into the seclusion of another. We so hold 
without expressing a view as to the appellate court conflict 
regarding the recognition of this cause of action.

   Considering plaintiffs' appropriation claim, the elements of 
the tort are: an appropriation, without consent, of one's name or 
likeness for another's use or benefit. (Restatement (Second) of 
Torts @ 652C (1977); Leopold v. Levin (1970), 45 Ill. 2d 434, 444, 
259 N.E.2d 250, 256.) This branch of the privacy doctrine is 
designed to protect a person from having his name or image used 
for commercial purposes without consent. (See Douglass v. Hustler 
Magazine (7th Cir. 1985), 769 F.2d 1128, cert. denied (1986), 475 
U.S. 1094, 89 L. Ed. 2d 892, 106 S. Ct. 1489 (finding defendant 
appropriated the value of model's likeness when it published nude 
pictures of her without consent).) According to the Restatement, 
the purpose of this tort is to protect the "interest of the 
individual in the exclusive use of his own identity, in so far as 
it is represented by his name or likeness." (Restatement (Second) 
of Torts @ 652C, Comment a (1977).) Illustrations of this tort 
provided by the Restatement include the publication of a person's 
photograph without consent in an advertisement; operating a 
corporation named after a prominent public figure without the 
person's consent; impersonating a man to obtain information 
regarding the affairs of the man's wife; and filing a lawsuit in 
the name of another without the other's consent. Restatement 
(Second) of Torts @ 652C, Comment b (1965).

   Plaintiffs claim that defendants appropriate information about 
cardholders' personalities, including their names and perceived 
lifestyles, without their consent. Defendants argue that their 
practice does not adversely affect the interest of a cardholder in 
the "exclusive use of his own identity," using the language of the 
Restatement. Defendants also argue that the cardholders' names 
lack value and that the lists that defendants create are valuable 
because "they identify a useful aggregate of potential customers 
to whom offers may be sent."

   Defendants cite Cox v. Hatch (Utah 1988), 761 P.2d 556, to 
support their argument. In Cox, the supreme court of Utah held 
that there had been no wrongful appropriation of plaintiffs' 
images through use of their pictures in campaign advertisements 
because the plaintiffs did not allege that their images had any 
intrinsic value or that they enjoyed any particular fame or 
notoriety. (Cox, 761 P.2d at 564.) Even more persuasive is Shibley 
v. Time, Inc. (1975), 45 Ohio App. 2d 69, 341 N.E.2d 337, 
discussed above, wherein the Court of Appeals of Ohio found that 
merely placing a person's name on a "personality profile" list and 
providing that list to a third party, did not constitute tortious 
appropriation. Shibley, 45 Ohio App. 2d at    , 341 N.E.2d at 339.

   To counter defendants' argument, plaintiffs point out that the 
tort of appropriation is not limited to strictly commercial 
situations. See Annerino v. Dell Publishing Co. (1958), 17 Ill. 
App. 2d 205, 208, 149 N.E.2d 761 (implying that the holding of 
Eick v. Perk Dog Food Co. (1952), 347 Ill. App. 293, 106 N.E.2d 
742, was being expanded beyond strictly commercial situations), 
and Douglass v. Hustler Magazine (7th Cir. 1985), 769 F.2d 1128, 
1138 (recognizing a good appropriation claim under Illinois law 
for commercial nonadvertising use of photographs); see also 
Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St. 2d 
224, 351 N.E.2d 454, rev'd on other grounds (1977), 433 U.S. 562, 
53 L. Ed. 2d 965, 97 S. Ct. 2849 (holding that Ohio law does not 
limit appropriation claims to commercial appropriation).

   Nonetheless, we again follow the reasoning in Shibley and find 
that plaintiffs have not stated a claim for tortious appropriation 
because they have failed to allege the first element. Undeniably, 
each cardholder's name is valuable to defendants. The more names 
included on a list, the more that list will be worth. However, a 
single, random cardholder's name has little or no intrinsic value 
to defendants (or a merchant). Rather, an individual name has 
value only when it is associated with one of defendants' lists. 
Defendants create value by categorizing and aggregating these 
names. Furthermore, defendants' practices do not deprive any of 
the cardholders of any value their individual names my possess.
 
Consumer Fraud Act

   Plaintiffs' complaint also includes a claim under the Illinois 
Consumer Fraud Act. (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261 
et seq. (now 815 ILCS 505/1 et seq. (West 1992)).) To establish a 
deceptive practice claim, a plaintiff must allege and prove (1) 
the misrepresentation or concealment of a material fact, (2) an 
intent by defendant that plaintiff rely on the misrepresentation 
or concealment, and (3) the deception occurred in the course of 
conduct involving a trade or commerce. Ill. Rev. Stat. 1991, ch. 
121 1/2, par. 262 (now 815 ILCS 505/2 (West 1992)); Siegel v. Levy 
Organization Development Co. (1992), 153 Ill. 2d 534, 542, 607 
N.E.2d 194, 198, 180 Ill. Dec. 300.

   In Elder v. Coronet Insurance Co. (1990), 201 Ill. App. 3d 733, 
558 N.E.2d 1312, 146 Ill. Dec. 978, the defendant insurance 
company failed to inform its customers, at the time of sale of 
insurance policies, of its practice of denying automobile-theft 
claims on the basis of polygraph examinations. The court held that 
the plaintiff's assertion that the defendant failed to disclose 
its claims adjustment practices sufficiently alleged a deceptive 
practice under the Act. (Elder, 201 Ill. App. 3d at 751, 558 
N.E.2d at 1321-23.) The court found this misrepresentation to be 
material because a customer would be expected to rely on this 
information when making a decision to buy insurance from the 
defendant. Elder, 201 Ill. App. 3d at 751, 558 N.E.2d at 1322.

   According to the plaintiffs, defendants conducted a survey 
which showed that 80% of Americans do not think companies should 
release personal information to other companies. Plaintiffs have 
alleged that defendants did disclose that it would use information 
provided in the credit card application, but this disclosure did 
not inform the cardholders that information about their card usage 
would be used. It is highly possible that some customers would 
have refrained from using the American Express Card if they had 
known  that defendants were analyzing their spending habits. 
Therefore, plaintiffs have sufficiently alleged that the 
undisclosed practices of defendants are material and deceptive.

   As to the second element, the Act only requires defendants' 
intent that plaintiffs rely on the deceptive practice. Actual 
reliance is not required. (Siegel, 153 Ill. 2d at 542, 607 N.E.2d 
at 198.) "A party is considered to intend the necessary 
consequences of his own acts or conduct." (Warren v. LeMay (1986), 
142 Ill. App. 3d 550, 566, 491 N.E.2d 464, 474, 96 Ill. Dec. 418.) 
When considering whether this element is met, good or bad faith is 
not important and innocent misrepresentations may be actionable. 
(Warren, 142 Ill. App. 3d at 566, 491 N.E.2d at 474.) Defendants 
had a strong incentive to keep their practice a secret because 
disclosure would have resulted in fewer cardholders using their 
card. Thus, plaintiffs have sufficiently alleged that defendants 
intended for plaintiff's to rely on the nondisclosure of their 
practice.

   The third element is not at issue in this case. However, 
defendants argue that plaintiffs have failed to allege facts that 
might establish that they suffered any damages. The Illinois 
Consumer Fraud Act provides a private cause of action for damages 
to "any person who suffers damage as a result of a violation of 
the Act." (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 270a (now 815 
ILCS 505/10a(a) (West 1992)).) Defendants contend, and we agree, 
that the only damage plaintiffs could have suffered was a surfeit 
of unwanted mail. We reject plaintiffs' assertion that the damages 
in this case arise from the disclosure of personal financial 
matters. Defendants only disclose which of their cardholders might 
be interested in purchasing items from a particular merchant based 
on card usage. Defendants' practice does not amount to a 
disclosure of personal financial matters. Plaintiffs have failed 
to allege how they were damaged by defendants' practice of 
selecting cardholders for mailings likely to be of interest to 
them.

   Plaintiffs argue that the consumer fraud statutes of other 
States allow recovery of mental anguish even if no other damages 
are pled or proved. Apparently, plaintiffs would like this court 
to assume that a third party's knowledge of a cardholder's 
interest in their goods or services causes mental anguish to 
cardholders. Such an assumption without any supporting allegations 
would be wholly unfounded in this case. Therefore, we hold that 
plaintiffs have failed to allege facts that might establish that 
they have suffered any damages as a result of defendants' 
practices.

   Accordingly, for the reasons set forth above, we affirm the 
order of the circuit court of Cook County.

   Affirmed.

   RAKOWSKI and CAHILL, JJ., concur.