Category: Class Action Litigation Defense Strategies

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Biometric Privacy Compliance Tips Case Law Developments Class Action Litigation Defense Strategies

Illinois Supreme Court: Federal Labor Law Preempts Union Employees’ BIPA Claims

Tianmei Ann Huang |

The Illinois Supreme Court in Walton v. Roosevelt University, 2023 IL 128338 (Mar. 23, 2023), unanimously affirmed dismissal of the putative class action arising under the Illinois Biometric Privacy Information Act, 740 ILCS 14/1 (“BIPA”), concluding that federal labor law preempted BIPA claims brought by unionized employees covered by a collective bargaining agreement (“CBA”). Consistent with Seventh Circuit federal court decisions in support of federal preemption, the Walton high court’s ruling specifically provides that Section 301 of the federal Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, preempts BIPA claims asserted by union employees (or bargaining unit employees) covered by a CBA in Illinois state courts. Therefore, the federal preemption defense may be used to foreclose these unionized employees from bringing BIPA claims in state and federal courts, including on a class action basis.

In Walton, the representative plaintiff was a member of a union subject to a CBA, which included a broad management-rights clause, during his employment with Roosevelt University. The putative class alleged that Roosevelt University used scanning devices to enroll employees’ hand geometry scans for timekeeping purposes, but Roosevelt University failed to fulfill BIPA’s Section 15 requirements. However, under the LMRA, the provisions of the CBA should govern, and even if “biometric” data is not expressly discussed within the CBA, a broad management-rights clause along with provisions regarding employee timekeeping and grievance resolution procedures may be sufficient to preclude BIPA litigation.

Overall, the Walton decision offers a measure of relief to defendants involved in BIPA disputes brought by union employees, particularly following the liability-expanding Illinois Supreme Court decisions in Cothron and Tims, as previously discussed. To avoid future litigation, employers should carefully exercise their exclusive rights to direct the employees covered by a CBA or other contract.

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Biometric Privacy Legal Landscape Case Law Developments Class Action Litigation Defense Strategies

Illinois Supreme Court Holds Five-Year Statute of Limitations Applies to All Biometric Information Privacy Act Claims

Amanda M. Noonan |

In a highly anticipated decision, the Illinois Supreme Court in Tims v. Blackhorse Carriers, Inc., 2023 IL 127801 (Feb. 2, 2023), recently resolved longstanding uncertainty about the statute of limitations under the Illinois Biometric Information Privacy Act (“BIPA”). The Court held all claims arising under BIPA are governed by the five-year “catch-all” statute of limitations period provided by section 13-205 of the Illinois Code of Civil Procedure. See 735 ILCS 5/13-205. In so holding, the Court adopted the most expansive of the two limitations periods at issue. And it rejected Defendant’s—and the broader defense bar’s—contention that Illinois’ one-year limitations period, as applied to certain privacy/defamation actions, should extend to all BIPA actions.

Notably, the Supreme Court reversed, in part, the First District Illinois Appellate Court’s decision that incongruently applied a one-year limitations period to claims arising under Sections 15(c), and 15(d)—but a five-year limitations period for BIPA actions accruing under Sections 15(a), 15(b), and 15(e). Under the Appellate Court’s reasoning, Sections 15(c) and 15(d) included elements of publication analogous to certain common law privacy torts, and, for that reason, required application of Illinois’ one-year statute of limitations for “actions for slander, libel or for publication of matter violating the right of privacy” 735 ILCS 5/13-201. At the same time, the Appellate Court applied the “catch all” five-year statute of limitations period to claims under Sections 15(a), 15(b), and 15(e), reasoning no publication element was involved. 735 ILCS 5/13-205.

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Biometric Privacy Legal Landscape Case Law Developments Class Action Litigation Defense Strategies

First Biometric Privacy Jury Trial Results in Massive $228 Million Dollar Verdict

Amanda M. Noonan |

A federal district court in the Northern District of Illinois conducted the first-ever jury trial in an Illinois Biometric Information Privacy Act (“BIPA”) case. On October 12, 2022, the jury returned a verdict for the plaintiff—and more than 45,000 class members—regarding defendant BNSF Railway’s (“BNSF”) reckless violations of BIPA. See Rogers v. BNSF Railway Co., No. 1:19-cv-03083 (N.D. Ill. Oct. 12, 2022). Plaintiffs’ claims centered on BNSF’s collection of fingerprints to verify their identities and allow access to BNSF’s facilities without obtaining their written consent, as required under BIPA Section 15(b).

After a five-day trial—and only an hour of deliberations—the jury found BNSF not only violated BIPA 46,500 times, but did so intentionally or recklessly under 735 ILCS 14/20(2). The jury’s finding on that issue quintupled plaintiff’s damages award to $5,000 per violation, as opposed to $1,000 per negligent violation. As a result, District Judge Matthew Kennelly entered a $228 million dollar damages award in plaintiffs’ favor following the verdict. BNSF has stated it intends to appeal.

The implications of the verdict loom large. On the plaintiff’s side, counsel will likely increase the already large-scale BIPA filings and push for higher settlement amounts, using the prospect of a successful jury trial as a bargaining chip. Given the stakes, BIPA defendants may be more inclined to seek early resolution once named in a BIPA class action to avoid a bet-the-company litigation at all costs.

Considering the verdict, early compliance efforts by companies implementing biometric technology are even more crucial to avoid BIPA litigation in the first instance. Significantly, companies using any technology that could arguably constitute biometrics—regardless of the sophistication—may be targeted by zealous plaintiff’s attorneys seeking to join the ever-increasing cascade of BIPA class action filings. Biometrics privacy counsel should thus be consulted to address compliance strategies to protect against the catastrophic risks of a BIPA verdict at the earliest possible opportunity.

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Case Law Developments Class Action Litigation Defense Strategies

Designing a BIPA Defense: Biometric Manufacturer & Vendor Litigation Strategies

Amanda M. Noonan |

Class action litigation against biometric technology manufacturers and vendors is on the rise. Several courts have recognized the viability of such claims and held manufacturers/vendors may be subject to liability under Sections 15(b) and 15(d) of the Illinois Biometric Information Privacy Act (“BIPA”). 740 ILCS 14/15(b) & (d); Figueroa v. Kronos Inc., 454 F. Supp. 3d 772, 784-86 (N.D. Ill. 2020). The merits of these BIPA claims are yet undetermined. But the risk of having to defend such claims in state and federal courts is real and ongoing.

As the saying goes, the best defense is good offense. Rather than face uncertain liability, or incur exorbitant litigation defense costs, potential BIPA defendants often turn to arbitration provisions. For manufacturers/vendors of biometric technology, however, this approach may not be that simple.

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