New Class Action Targets “Surveillance Pricing”: What Businesses Using Personalized Pricing Need to Know
Overview
On April 22, 2026, a putative class action was filed against JetBlue Airways Corporation in the United States District Court for the Eastern District of New York, captioned Phillips v. JetBlue Airways Corp., No. 1:26-cv-02405-PKC-RML (“Phillips”). The complaint is described as “one of the very first class actions in American history regarding dynamic surveillance pricing and the surreptitious use of consumer data in order to set pricing based on consumer behavior.”1 As this case will be closely monitored as a template for similar actions across industries, this Legal Update flags the key allegations, the surrounding press and regulatory environment, and the immediate practical implications for companies that use—or may inadvertently be using—personalized or data-driven pricing.
The Lawsuit
The complaint alleges that JetBlue uses tracking technology embedded in its website, together with third-party trackers, to collect personally identifiable information and behavioral data from consumers without adequate consent, and then uses (and shares) that data to set ticket prices dynamically based on each consumer’s perceived willingness to pay. Specifically, Phillips alleges that JetBlue’s privacy policy fails to disclose that trackers are used to set pricing, that trackers feed behavioral analytics used for dynamic pricing, and that consumer data is shared with third parties for pricing purposes. The complaint identifies FullStory (a behavioral analytics platform) and PROS Holdings (a real-time pricing algorithm vendor) as key third-party recipients of consumer data.
The complaint asserts three causes of action: (1) violations of the federal Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq., on behalf of a nationwide class; (2) violations of New York General Business Law § 349 (deceptive trade practices) on behalf of a nationwide class and a New York subclass; and (3) violations of New York General Business Law § 396 (unlawful selling practices), which the complaint frames as JetBlue advertising a price with the intent, design, or purpose of changing it based on the consumer’s personal data if the consumer does not transact immediately. Phillips seeks actual and statutory damages (including ECPA statutory damages of the greater of $100/day per violation or $10,000), disgorgement, injunctive and declaratory relief, and attorneys’ fees.
Notably, the complaint concedes that “surveillance pricing is not illegal in the United States” but argues that “secretly collecting consumer data on the internet without adequate consent is—and that is the basis for this Action.”2
The Inciting Tweet
The lawsuit grew directly out of a viral social media incident. On April 18, 2026, a JetBlue customer complained on X that a fare had jumped $230 in a single day while he was trying to book travel to a funeral, and a JetBlue account replied advising the customer to “clear[] your cache and cookies or book[] with an incognito window.” 3 JetBlue deleted the post, but not before it was screenshotted and amplified. The complaint relies heavily on this exchange, characterizing it as an admission that JetBlue “use[s] this form of dynamic surveillance pricing.”4
JetBlue has denied the allegation, telling MarketWatch the tweet was an “error” and that its fares “are not determined by cached data or other personal information,” and that pricing is based on real-time availability and demand.
Consumer advocates and elected officials are calling for legislation banning surveillance pricing. At the federal level, Senator Ruben Gallego and Representative Greg Casar sent a letter to JetBlue demanding answers about its pricing practices, including whether consumers might be charged different prices based on circumstances such as needing to attend a funeral. States have also taken action. Maryland passed the Protection From Predatory Pricing Act , making it the first state specifically banning surveillance pricing, and several other states have introduced bills addressing a range of data-driven pricing practices. While many of these bills focus on requiring specific disclosures for algorithmic pricing, others are following Maryland’s lead in seeking outright bans. In New York, for instance, Attorney General Letitia James has called for the passage of the “One Fair Price Package,” which consists of two bills that would protect New Yorkers from surveillance pricing. Regulators are focusing on enforcement as well. For example, California Attorney General Rob Bonta recently announced an investigative sweep into surveillance-pricing practices.
What This Means for Similarly Situated Businesses
For companies that engage in personalized or data-driven pricing—or that are not entirely sure whether their vendors are doing so on their behalf—the Phillips complaint should be read as a wake-up call rather than an isolated airline-industry dispute. Plaintiffs’ counsel are clearly testing a litigation playbook that pairs federal wiretap theories (ECPA) with state consumer-protection and deceptive-practices statutes, and the airline industry is likely to be only the first industry targeted. Because the Phillips theory hinges on alleged gaps between what privacy policies disclose and what tracking pixels, session-replay tools, and third-party analytics partners actually do (i.e., exactly the kind of fact-intensive issue that class discovery is designed to surface in adversarial fashion), the legal exposure may be meaningful even where the underlying pricing conduct is lawful.
We advise clients in this position to take several immediate steps, all of which are best undertaken under privilege. First, conduct a candid internal audit of the company’s website and map what data is collected and using what mechanisms, where it is sent, and for what purpose, so that the company actually knows whether personal or behavioral data is influencing displayed prices. Second, compare those findings against the company’s privacy policy, cookie banner, and terms of use, and update those as needed to provide clear disclosures to users about how their data may inform pricing. Third, review consent mechanics, particularly for users in jurisdictions like New York and California where state consumer-protection and privacy regimes provide independent paths to liability. Fourth, align customer-facing communications with technical reality; litigation risk often increases due to gaps between what customer-service representatives, marketing materials, or social media accounts say about pricing and what the underlying systems actually do. Finally, revisit vendor contracts with analytics and pricing providers to confirm appropriate data-use restrictions, audit rights, and indemnification (in addition to having the appropriate required contractual provisions to make them into a “service provider” under applicable state privacy laws), given that plaintiffs are likely to name (or subpoena) those vendors in follow-on suits.
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Mayer Brown has extensive experience in areas and industries that may be affected by surveillance pricing litigation or investigations. Should you have any questions or require legal guidance, Mayer Brown’s experienced team can help clients take proactive steps, including the identification of litigation risks, regulatory evaluation and risk assessment, government action and involvement, commercial engagement, evaluation of alternative options in the industry, and reputational and governance advisement.
1 Phillips, Dkt. 1 at ¶ 1.
