Walmart Asks Judge to Dismiss Self-Checkout Video Privacy Class Action

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On Monday, Walmart Inc. filed a motion to dismiss a class action lawsuit alleging the retailer’s use of security cameras that record customers’ faces at self-checkout registers violates California privacy laws.

Plaintiff Joseph Carlos Valesquez filed the Walmart privacy class action lawsuit in May, arguing that his image was captured while making credit card transactions at a self-checkout register in a California Walmart store.

He says the recording of his “personal likeness” including facial features and hair and eye color in connection with a credit card transaction violates the California Song-Beverly Credit Card Act.

Walmart argues in its motion to dismiss the self-checkout privacy class action lawsuit that Valesquez is attempting to “stretch California’s Song-Beverly Act … well beyond what the California Legislature contemplated and intended.”

According to Walmart, California’s Song-Beverly Act prohibits merchants that accept credit cards from requiring customers to provide personal identification information (PII) as a condition to accepting payment via credit card, and then recording the cardholder’s PII.

Valesquez says that the security cameras used at the self-checkout registers are different than the standard security cameras that are used throughout the Walmart store because they are used to collect valuable biometric information about shoppers, the Walmart class action lawsuit says.

“Defendant’s video recording subjects consumers, including plaintiff, to the potential threat of onerous harassment, including but not limited to, identity theft, marketing campaigns, and unwelcome, distasteful, or otherwise threatening communications,” Valesquez alleges.

Walmart claims that Valesquez failed to show that eye color, hair color and facial features could be used for these purposes, or that anyone had actually received any marketing because of the information collected by the cameras.

Valesquez also argues there is no way to avoid being subjected to being recorded because Walmart requires each consumer to be recorded by the cameras as they use the self-checkout registers.

Walmart disputes Valesquez’s claim that he was forced to submit to be recorded as part of making a credit card transaction.

“In fact, Plaintiff concedes that he ‘selected’ a self-check-out register with a camera ‘affixed to the cash register,’ instead of a traditional, manned register where no such recording is alleged to have occurred,” Walmart argues. “Plaintiff’s failure to plead that he was required, or thought he was required, to use the self-check-out register in order to pay with a credit card is fatal to his Complaint.”

Walmart asked the judge not to give Valesquez a chance to file an amended self-checkout video class action lawsuit because it argues that his complaint fails as a matter of law and that there is nothing further he could argue to make his claim viable.

A hearing is scheduled for Aug. 27.

Valesquez is represented by Todd D. Carpenter and Brittany C. Casola of Carlson Lynch Sweet Kilpela & Carpenter LLP, and by Jeffrey D. Kaliel and Sophia Gold of Kaliel PLLC.

The Walmart Self-Checkout Video Privacy Class Action Lawsuit is Valesquez v. Walmart Inc., Case No. 3:18-cv-01004, in the U.S. District Court for the Southern District of California.