The Class Action Weekly Wire – Episode 128: Illinois Federal Judge Certifies Class Of 1.2 Million Amazon Alexa Users In BIPA Class Action (Video)

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Episode Transcript

Jerry Maatman: Thank you, loyal blog readers and listeners, for joining us again for this week's edition of the Class Action Weekly Wire. I'm Jerry Maatman, a partner with Duane Morris, and joining me today are my colleagues Hayley Ryan and Tyler Zmick. Thanks so much for being here.

Tyler Zmick: Great to be here, Jerry. Thank you for having me.

Hayley Ryan: Glad to be here, Jerry. Thanks so much.

Jerry: Today, we're diving into a major ruling from the U.S. District Court for the Northern District of Illinois, entitled Gundersen v. Amazon.com. It's a lawsuit against Amazon regarding the Alexa Voice ID feature and alleges violation of the Illinois Biometric Information Privacy Act, known by the acronym BIPA. Let's start with the basics. Hayley, what exactly is Voice ID?

Hayley: Sure. Amazon's Alexa has been around for a while, but since October 2017, it's included a feature called Voice ID. This feature essentially trains Alexa to recognize a specific user's voice. Users go through an enrollment process in the Alexa app, where they read several prompted phrases, which are called "utterances," so Alexa can "learn" their voice and later personalize responses. The plaintiffs in this case alleged that this process creates a "voiceprint," which counts as a biometric identifier under the BIPA. And the BIPA strictly regulates the collection, storage, sale, and disclosure of biometric data.

Jerry: As I understand it, the plaintiffs in the case allege that Amazon never told users of Alexa that the system would be creating or storing biometric "voiceprints." Was that the gravamen of the claim?

Tyler: Exactly right. So, the prompts that were presented to the plaintiffs mentioned "Voice ID," and the prompts also authorized Amazon to "create, use, improve, and store your Voice ID," but the plaintiffs, who had all enrolled in Voice ID, alleged that those prompts failed to satisfy BIPA because they never used the specific statutory terms "voiceprint," "biometric identifier," or "biometric information."

Jerry: Thanks for that explanation, Tyler. Can you walk our listeners through the exact allegations at issue in the lawsuit under BIPA, and what the plaintiffs claimed were violations?

Tyler: Sure. So, plaintiff sued Amazon under three sections of BIPA. The first one is Section 15(b) of BIPA for alleged collection of biometric data, specifically voiceprints, without providing the required written disclosures and obtaining the plaintiffs' informed written consent. Number two, plaintiffs allege that Amazon violated Section 15(c) for allegedly profiting from the biometric data. And finally, plaintiffs alleged a violation of Section 15(d) for allegedly disclosing biometric data without the plaintiff's consent. And, as I'm sure many people know, BIPA also gives plaintiffs a private right of action where they can recover $1,000 in statutory damages per negligent violation, or $5,000 in statutory damages per reckless or intentional violation. When you have potentially more than one million Illinois Voice ID users, which is the size of the class in this case, the damages can add up pretty quickly.

Jerry: As I read the opinion, the plaintiffs sought certification of a class defined as "all natural persons in Illinois for whom Amazon created a voiceprint on or after June 27, 2014," and in terms of $5,000 per class member and over a million – obviously a whopper of a class. Let's talk about how the court handled the Rule 23 analysis with respect to the plaintiffs' motion for class certification.

Hayley: Sure, Jerry. Well, the court first found that the proposed class easily met the numerosity requirement, since Amazon admitted that about 1.18 million Alexa users with Illinois billing addresses enrolled in Voice ID between 2017 and 2023. And the court also determined that the plaintiffs' proposed class met the commonality requirement of Rule 23, because everyone went through the same enrollment process, got the same disclosures, and the questions, such as whether Voice ID creates a biometric identifier, applied across the board.

Jerry: Rule 23(a)(3), of course, deals with typicality, and that seemed to me where the opinion got very interesting in terms of the court's analysis.

Hayley: Yes, definitely, Jerry. The court actually rejected the named plaintiff Gunderson as a class representative, because he enrolled in Voice ID years after the lawsuit had already been filed, meaning that being a named plaintiff, he knew, or should have known, that enrollment would create a voiceprint. That opened him up to unique defenses like waiver or ratification. And the court said that those unique defenses could become a "major focus" of litigation, making him an atypical class representative.

Tyler: That said, the court did accept plaintiffs Block and Stebbins as typical representatives. So, Mr. Block enrolled in Voice ID before he was ever involved in the case, and the court said that Amazon's arguments about his professional relationship in prior cases with plaintiffs' counsel were too speculative. The court also found that Mr. Stebbins' claims were typical to those of the class, even though Amazon attacked his credibility based on inconsistencies in his deposition testimony. The court said that nothing in the testimony rose to the level that would harm the class.

Jerry: Seemed to me the discussion and analysis of typicality bled into the discussion of adequacy, and here the court ran through usual topics of concern, including conflicts of interest, relationships with class counsel, and the credibility of the named plaintiff.

Hayley: Right, Jerry. And ultimately, the court found Mr. Block and Mr. Stebbins adequate class representatives, but not Mr. Gunderson. The court also noted that continuing to use Voice ID or not deleting it did not make the plaintiffs inadequate class representatives. That applied uniformly across users.

Jerry: Let's move on to the Rule 23(b) requirements. Inasmuch as predominance is usually the make-or-break-it issue for certification in BIPA cases, how did the court rule on 23(b)(2)?

Tyler: That's a great question, Jerry. The court found predominance satisfied for all three of the BIPA claims. The court stated that whether Voice ID creates a "voiceprint" was a common question that applied to all class members and also whether Amazon's disclosures satisfied BIPA's notice requirements also involved a common question, because the disclosures were identical for everyone in the class. Regarding the Section 15(c) and Section 15(d) claims, the plaintiffs said that they would prove that Amazon's data sharing practices violated BIPA through common evidence, which the court accepted at this stage. Interestingly, Amazon also tried to argue that the class was not ascertainable, because BIPA does not apply to Voice ID users who were not physically in Illinois during enrollment and Amazon noted that the evidence did not definitively show whether a user was, in fact, in Illinois at that time. But the court ruled that plaintiffs presented enough evidence that Amazon's internal records can determine the state that a user was in at the time of enrollment. So, ultimately, the court rejected Amazon's extraterritoriality argument against class certification.

Hayley: And as to the superiority requirement of Rule 23 , the court ruled that with 1.2 million potential class members, a class action would be a far more efficient method of adjudication, as opposed to millions of individual lawsuits.

Jerry: Well, this certainly constitutes a major development in biometric privacy class action litigation, insofar as it is an order that certifies perhaps the largest class in the state of Illinois, and even in the United States, over the past year. Our Duane Morris Class Action Review of 2026, due out in the first week of January, will analyze all the opinions throughout the United States, and has a special BIPA appendix chapter that will talk about this ruling and others. Before we wrap up today, any predictions as to this case and what we will see in terms of ongoing BIPA litigation in Illinois?

Tyler: So, I think for one, in this case, Amazon will likely lean heavily into the argument that Voice ID does not create a voiceprint under BIPA, especially at summary judgment, so that is very much a merits argument that Amazon tried to raise at class certification. But the court declined to hear that argument because it went to the merits rather than class certification-related issues. I think Amazon will likely also seek to appeal the class certification order up to the Seventh Circuit.

Hayley: Yeah, I agree with you, Tyler, and I also expect more litigation in other jurisdictions, given the rise of voice-activated technology, such as cars, appliances, smart TVs – you name it. BIPA is still the strictest law, but it's not the only one anymore.

Jerry: Well, thanks so much, and great insights and thought leadership from you both, Hayley and Tyler. And thank you, listeners, for joining us for today's discussion about the largest BIPA class certification order of 2025. We'll be sure to keep you up to date and informed of all developments involving this and other BIPA and privacy class actions. Happy Thanksgiving, everyone, and thanks for being here.

Hayley: Thanks for having me on the podcast, Jerry, and thanks to the listeners for being here.

Tyler: Thanks, everyone!

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