Kiip Spying Class Action Nears Settlement, Moves to State Court

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Two fitness app users have taken their Kiip spying class action lawsuit from federal court to Illinois state court as they approach a settlement deal.

Plaintiffs Jessica Vasil and Christine Farag first filed their data class action lawsuit against Kiip in Illinois federal court in 2016 claiming that Kiip, a mobile advertiser, used its relationship with the app maker FitnessKeeper Inc. to steal app users’ personal information that was stored on their smart phones.

On Friday, Vasil and Farag moved the data theft class action lawsuit to Illinois state court in order to finalize the class action settlement.

According to a statement made to Law360, Kiip said the users “dismissed their federal case and re-filed in state court, so that the settlement could be effectuated in state court, for the reasons stated in their notice of dismissal of the federal case.”

In their Kiip class action lawsuit, the app users note that they are not attempting to hold FitnessKeeper accountable for the alleged data theft.

The plaintiffs claim that FitnessKeeper ended its business relationship with Kiip after learning that Kiip had allegedly been collecting data for its own usage.

Vasil and Farag state that FitnessKeeper had hired Kiip to target ads to people who use FitnessKeeper’s RunKeeper app, and allegedly did not know that Kiip collected and used consumer data for its own purposes.

“Not only does [Kiip] fail to inform consumers about its invasive monitoring activities, [but it] also keep sits app developer partners in the dark about its unseemly and illegal conduct,” the Kiip class action lawsuit states.

Vasil and Farag had argued that Kiip’s conduct violated the federal wiretap law and the Illinois eavesdropping statute. They also claimed that the company was unjustly enriched by its collection and use of the data.

However, in December 2016, Kiip made a move to have the wiretap claim and part of the state eavesdropping law claim dropped from the data lawsuit, which was granted by U.S. District Judge John Tharp Jr. in March 2018.

On his decision to dismiss some of Vasil and Farag’s claims, Judge Tharp said that “although the Seventh Circuit has not yet addressed whether locational information constitutes the ‘content’ of a communication under the Wiretap Act, other circuits have.”

Vasil and Farag claimed that Kiip had collected information including geographic information used in the RunKeeper app.

Judge Tharp disagreed with Vasil and Farag’s assertion that geographic location should be protected under the Wiretap Act, saying that “the touchstone of each decision has been that the ‘content’ of a communication is the substance that the speaker intended to communicate, and does not include automatically generated ‘record’ data — for example, information about a telephone call’s origination, length, and time.”

According to the judge, because Vasil and Farag said that they did not intend to share their location with Kiip, it did not fall under the Wiretap Act.

Judge Tharp then went on to suggest that Vasil and Farag’s claims against Kiip’s data collection would be better suited to fall under the Stored Communications Act.

The plaintiffs are represented by Myles McGuire, Paul T. Geske, and Timothy P. Kingsbury of McGuire Law PC.

The Kiip App Data Collection Class Action Lawsuit is Farag, et al. v. Kiip Inc., Case No. 2019-CH-01695, in the Chancery Division of the Circuit Court of Cook County, Illinois.

UPDATE: July 2019, the Kiip mobile app spying class action settlement is now open.Click here to file a claim.

UPDATE 2: On Jan. 25, 2020, Top Class Actions viewers started receiving checks from a Kiip mobile app spying class action settlementworth as much as $14.07.