Bose Wants Headphone Wiretap Class Action Dismissed

Bose has asked an Illinois court to dismiss a wiretap class action against them that claims the company collects consumer listening data.

The Bose class action lawsuit filed by plaintiff Kyle Zak has reportedly been amended three times, but the most recent iteration allegedly only made “limited and superficial” changes.

Bose claims that the class action lawsuit should be dismissed permanently.

Zak’s claims under the federal Wiretap and Eavesdropping Act were reportedly dismissed by the court in the past, but the third amended complaint allegedly tried to resuscitate these claims.

Bose argues that these claims should stay dismissed and that Zak is only attempting to revive his Wiretap Act claims because they provide “hefty” statutory damages that are not provided by his remaining claims.

“But stripped of implausible conclusory assertions and arguments for which Plaintiff provides no factual support, the events described in his latest complaint still do not—and cannot—amount to Wiretap and Eavesdropping Act violations,” Bose argues in their motion to dismiss.

“If they did, any app that captures usage data would be subject to Wiretap Act claims so long as the information captured also travels via the Internet. This is not the law.”

Zak originally filed his class action lawsuit against Bose in April 2017, claiming that the high end headphone company collects user information through its Bose Connect app.

He argues that the app collected song titles and other information which Bose then transmits to third parties without consumer consent.

Zak claimed that he would not have paid $350 for his pair of Bose QuietComfort 35 wireless headphones if he knew that his personal listening data would be collected and shared.

The original class action filing contained claims of violations of the Wiretap and Eavesdropping Act and the Illinois Consumer Fraud and Deceptive Business Practice Act.

In April 2019, U.S. District Judge Andrea Wood dismissed Zak’s claims that Bose violated the federal Wiretapping Act and the Illinois Eavesdropping Statute. Judge Wood determined that Bose could not violate these laws because they were not a third party in the communications due to the fact that the “app is a fully acknowledged participant in the communication of the media information — indeed, receiving and displaying the media information is a primary function of the app.”

Zak’s most recent iteration of his class action lawsuit is a response to Judge Wood’s dismissal of his claims, but Bose argues that he only made cosmetic changes to his claims and added “window dressing” language without changing the true intent of his allegations.

In addition to challenging Zak’s limit changes, Bose argues that the data collected by the app could not be considered a “communication” under the Wiretapping law even if Bose was considered a third party.

“If it were the content of the communication it would be the song itself — music and lyrics. But plaintiff alleges only that the app collects record information each time he presses the track forward or backward button,” Bose argues.

“This demonstrates that what is occurring is not an interception of a communication, but rather the logging of one […] Plaintiff does not allege that the Bose [app] listens to — or can even access — the songs or podcasts themselves, but only that it logs record information about those songs and podcasts, like the name of the track.”

Zak is represented by Jay Edelson, Rafey S. Balabanian, Benjamin S. Thomassen, J. Eli Wade Scott and Eve-­Lynn J. Rapp of Edelson PC.

The Bose Headphones Wiretap Class Action Lawsuit is Zak v. Bose Corp., et al., Case No. 1:17­-cv­-02928, in the U.S. District Court for the Northern District of Illinois.

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