SCRANTON – A lawsuit from a Pennsylvania man who alleged that collective conduct between General Motors, OnStar and LexisNexis resulted in driver behavior data being collected without drivers’ consent has been stayed while a motion for transfer currently before the Judicial Panel on Multidistrict Litigation is resolved.
Jonathan DiNardo (individually and on behalf of all others similarly-situated) first filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 27 versus General Motors, LLC and OnStar, LLC of Detroit, Mich. and LexisNexis Risk Solutions, Inc., of Alpharetta, Ga.
“GM vehicles starting with model year 2015 have the capability to use OnStar software and related applications. The software and applications, which include applications such as MyChevrolet, MyBuick and MyCadillac, allows GM and OnStar to record, store, and transmit data not just about vehicle condition (e.g., engine or transmission status, etc.), but also driver behavior. As noted supra, among data collected are metrics such as average speed; percentage of time speed exceeds 80 mph; the frequency and intensity of acceleration and braking; and late night driving – all of this and more is capable of, and is, being digitally recorded, stored, and viewed through onboard vehicle software. The data are collected after each drive. While GM claims it does not enroll drivers in OnStar and does ‘not collect driving behavior data’ without consent, that does not appear to be the case. It appears GM and OnStar track, store and share driver behavior data whether or not a driver consents or not,” the suit said.
“Further, GM’s and OnStar’s processes do not adequately apprise drivers that their driver behavior data will be collected, furnish or sold to third-parties (without compensation to drivers), let alone sold to third-parties who resell the data to automobile insurers resulting in higher insurance quotes or premiums. To the contrary, GM and OnStar misleadingly represent that any data collected by the ‘optional’ service simply is to ‘help [drivers] maximize their vehicle’s overall performance, reduce vehicle wear and tear and encourage safe driving.’ Nothing in GM’s and OnStar’s disclosures mentions that it will furnish or sell drivers’ driving performance data to third parties, let alone to third parties which, in turn, provide that data to automobile insurance companies, resulting in higher insurance quotes or premiums. GM’s and OnStar’s concealment runs counter to its purported use of appropriate safeguards to protect drivers’ data. In fact, GM and OnStar very recently admitted, for the very first time, that they had been sharing drivers’ data with third-parties such as LexisNexis: ‘As of March 20, 2024, OnStar Smart Driver customer data is no longer being shared with LexisNexis or Verisk.”
The suit added that the plaintiff and other class members “suffered actual harm and the risk of future harm as a result of GM and OnStar’s illicit activities, including but not limited to invasion of their privacy interest in their own data, loss of control over their own data, the sale of their own data without compensation, and adverse credit reporting and impaired credit scores.”
“LexisNexis is a self-described ‘analytics provider for industries around the globe, including financial services, retail/ecommerce, logistics and telecommunications. Among LexisNexis’s data analytics offerings is the firm’s capabilities relating to insurance, including automobile insurance, to ‘help insurers and automakers streamline business processes, control costs and improve customer experiences.’ LexisNexis ‘helps’ automobile insurers by collecting and consolidating third-party data that can be used to set or modify (most often, increase) drivers’ automobile insurance quotes. Among the data LexisNexis offers to insurers – for a price – is driver behavior data. LexisNexis combines ‘everything [insurers] need to assess driving risk, all in one place. LexisNexis brags that its data analytics provides ‘comprehensive insights about household drivers, vehicles, and policy history.’ It touts its ‘telematics solutions’ as ‘providing timely connected car data and mobility risk insights.’ LexisNexis ‘receives and manages data from connected vehicles, mobile apps and third-party services,” the suit stated.
“The driving behavior data received is normalized and used to generate scores and attributes that are more easily ingested into insurance workflows to help better assess risk.’ This allows insurers to ‘predict insurance loss potential,’ i.e., set quotes or premiums. LexisNexis is unabashed about what it offers to automobile insurers for a price. LexisNexis promises insurers: ‘improve your ability to assess risk and capture otherwise missed premium. In other words, LexisNexis obtains driver behavior data, repackages it and sells its to automobile insurers, which often results in higher insurance premiums for the drivers’ whose data is being used. This occurs without drivers’ full knowledge and consent. LexisNexis does not disclose that it obtains driver behavior data from GM and OnStar without drivers’ knowledge or consent, let alone by compensating drivers themselves for their data. Rather, LexisNexis knowingly purchases or otherwise obtains the driver behavior data that GM and OnStar surreptitiously collects. Then, LexisNexis turns a profit for itself by marketing that driver behavior data to automobile insurers, who in turn often set or increase drivers’ quotes or premiums based on the data. Everyone in this series of transactions profits, except drivers themselves – the very people whose data is being collected and brokered without their full knowledge and consent, and without compensation.”
The plaintiff added this conduct was fraudulently concealed by the defendants, and thus should equitably toll any pertinent statute of limitations period regarding the alleged violations.
UPDATE
On April 15, counsel for all parties filed a joint motion to stay the case, while a pending, separate motion for transfer and centralization before the JPML is resolved.
“This case is one of nine putative class actions filed in six separate federal jurisdictions in connection with defendants’ alleged collection and publication of certain driving data. Shortly before and after plaintiff served his complaint, six substantively similar actions were filed in: (1) The Southern District of Florida, Chicco v. General Motors LLC, et al., Case No. 9:24-cv-80281 (S.D. Fla. March 13, 2024); (2) The Southern District of New York, Landman v. General Motors LLC, et al., Case No. 1:24-cv-02238 (S.D.N.Y. March 25, 2024); (3) The Eastern District of Michigan, Reed v. General Motors LLC, et al., Case No. 2:24-cv-10804 (E.D. Mich. March 28, 2024); Block v. General Motors LLC, et al., Case No. 2:24-cv-10824 (E.D. Mich. March 31, 2024); and (4) The Central District of California, King v. General Motors LLC, et al., Case No. 2:24-cv-02560 (C.D. Cal. March 28, 2024); Thongsawang v. General Motors LLC, et al., Case No. 8:24-cv-00695 (C.D. Cal. March 29, 2024),” the motion stated.
“On April 5, 2024, Central District of California plaintiff Thongsawang filed a motion for transfer and centralization pursuant to 28 U.S.C. Section 1407 with the JPML, see IN RE: Consumer Vehicle Driving Data Tracking Litigation, Case MDL No. 3115, which was accepted for filing on April 9, 2024. The JPML promptly set the motion for the JPML’s upcoming May 30, 2024 hearing session, and ordered the parties to respond and reply by April 26, 2024 and May 3, 2024, respectively. A ruling on the motion for transfer and centralization is expected shortly after the May 30 hearing. On April 11, 2024, defendants conferred with plaintiff in this action and plaintiff agreed to a stay pending resolution of the motion for transfer and centralization by the JPML.”
Counsel for all parties believed such a move “will promote judicial economy and sound judicial administration, avoid duplicative pretrial proceedings and potentially inconsistent pre-trial rulings, and prevent prejudice to all parties.”
U.S. District Court for the Middle District of Pennsylvania Judge Julia K. Munley granted the joint motion on April 17.
For counts of violating the Fair Credit Reporting Act, consumer protection laws in all 50 states, tortious interference, invasion of privacy and unjust enrichment, the plaintiff is seeking preliminary and injunctive relief, compensatory damages, attorneys’ fees, expert witness fees, costs, statutory penalties, pre- and post-judgment interest and such other and further relief as the Court may deem just, equitable or proper.
The plaintiff is represented by David John Stanoch and Ruben Honik of Honik LLC, in Philadelphia.
The defendants are represented by Adam M. Shienvold of Eckert Seamans Cherin & Mellott and Justin G. Weber of Troutman Pepper Hamilton Sanders, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 3:24-cv-00524
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com