Tag: Illinois Biometric Information Privacy Act

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Biometric Privacy Legal Landscape Case Law Developments

$228M Damages Award Vacated in First BIPA Trial

Karen H. Shin |

The U.S. District Court of the Northern District of Illinois vacated a $228 million damages award in Rogers v. BNSF Railway Co., the first case tried to a verdict under the Illinois Biometric Information Privacy Act (“BIPA”). In Rogers v. BNSF Railway Co., rail workers alleged that BNSF Railway Co. (“BNSF”) collected their biometric information without informed consent. The jury found that BNSF had recklessly or intentionally violated BIPA 45,600 times (one violation per class member). BIPA provides that intentional or reckless violations of BIPA may result in liquidated damages of $5,000 or actual damages, whichever is greater.

The prior award resulted from multiplying the number of BIPA violations by $5,000 to arrive at $228 million. While the court upheld the verdict that the company violated the BIPA, it held that damages were discretionary under BIPA (due to the term “may”) and ordered a new trial limited to the question of damages.

To read more articles from the August 2023 edition of Blank Rome’s BR Privacy & Security Download, please visit our website.

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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 Compliance Tips Biometric Privacy Legal Landscape Case Law Developments

Illinois Supreme Court Dramatically Expands Liability by Ruling Each Scan of a Biometric Identifier Is a Separate Violation

Amanda M. Noonan |

In a 4-3 split, the Illinois Supreme Court ruled earlier this month that claims under Sections 15(b) and 15(d) of the Illinois Biometric Information Privacy Act (“BIPA”) accrue each time a private entity scans a person’s biometric identifier and/or submits such scan to a third party—rather than only upon first collection. Cothron v. White Castle System, Inc., 2023 IL 128004 (Feb. 17, 2023). This decision—which dramatically expands the scope of potential liability for BIPA defendants—comes just weeks after the Illinois Supreme Court held a five-year statute of limitations applies to all BIPA causes of action in Tims v. Blackhorse Carriers, Inc., 2023 IL 127801 (Feb. 2, 2023).

The impact of Cothron on claim accrual, coupled with Tims’ resolution of the statute of limitations, will have an immense and immediate impact on BIPA class-action lawsuits—many of which had been stayed pending these decisions.

For many businesses that implement biometric time clocks, which scan biometric identifiers to track employee time/attendance, this means each time an employee scans in-and-out of work, a new BIPA violation accrues. Together with the five-year statute of limitations period, BIPA defendants may now be facing hundreds—if not thousands—of independent BIPA violations for a single complainant.

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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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Biometric Privacy Legal Landscape Case Law Developments

Q1 Biometric Privacy Litigation Update

Amanda M. Noonan |

In the first quarter of 2022, there have already been significant legal developments in the biometric technology space. Most notably, the Illinois Supreme Court—which has actively taken Illinois Biometric Privacy Act (“BIPA”) cases amid the surge of such class action litigation in federal and state courts—issued several consequential BIPA opinions this year. Though 2022’s most critical BIPA decisions are likely still on the horizon.

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Case Law Developments

Claim Accrual Ruling Could Bring Seismic Shift to Biometric Privacy Landscape in 2022

Amanda M. Noonan |

At the end of 2021, two developments laid the groundwork for a definitive resolution of one of the most significant, yet unsettled, issues under the Illinois Biometric Information Privacy Act (“BIPA”)—claim accrual. While all litigants would appreciate some certainty surrounding this hot-button issue, resolution of when a BIPA violation “accrues” (i.e., occurs) will have a seismic impact on the trajectory of all BIPA litigation for years to come—depending on how the Illinois Supreme Court rules in the coming term.

Watson and Cothron BIPA Decisions

In mid-December 2021, an Illinois appellate panel in Watson v. Legacy Healthcare Financial Services, LLC, held BIPA claims accrue each and every time a defendant captures biometric information in violation of the statute, as opposed to only accruing at the first instance of collection.

Just a few days after Watson, the Seventh Circuit Court of Appeals issued its decision in Cothron v. White Castle System, Inc.—another appeal involving claim accrual. But rather than decide when a BIPA claim accrues, and after acknowledging the existence of Watson, the Cothron court certified the question to the Illinois Supreme Court to provide definitive guidance.

While neither Watson nor Cothron offers a conclusive answer, the issue is now teed up to be definitely decided by Illinois’ highest court.

Impact & Implications

The accrual date is a significant issue in BIPA class action litigation. Depending on the circumstances, accrual can serve as the basis for a statute of limitations defense, which, if successful, may require dismissal. But the issue is even more consequential in the context of damages and determining the overall value of a biometric privacy class action. If continuing BIPA violations constitute separate, independent claims, then the associated statutory negligent damages of $1,000 per violation (or $5,000 if intentional) could begin to compound. And because the law provides for liquidated damages for each violation, a ruling that claims accrue each time a defendant runs afoul of the law’s requirements could expand such liability exponentially.

Conclusion

Companies should pay close attention to how the Illinois Supreme Court decides the Cothron appeal, as the ruling could result in a drastic shift in the biometric privacy legal landscape. In the interim, companies should—with the assistance of experienced biometric privacy counsel—take the time to reassess their compliance with BIPA to ensure they are satisfying the full range of requirements to mitigate potential class action risk.

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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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Case Law Developments

Illinois Appellate Court Clarifies Applicable Limitations Period in BIPA Class Action Litigation

David J. Oberly |

On September 17, 2021, the Illinois Appellate Court First District delivered its much-anticipated decision in Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (1st Dist. Sep. 17, 2021), addressing the applicable statute of limitations for causes of action asserted under the Illinois Biometric Information Privacy Act (“BIPA”).

The court held that claims brought under Sections 15(a), (b), and (e)—pertaining to the law’s privacy policy/data destruction, notice/consent, and data security requirements—are subject to a five-year statute of limitations. Conversely, claims asserted under Sections 15(c) and (d)—relating to the law’s ban on profiting from biometric data and disclosure limitations—are subject to a one-year limitations period.

Importantly, in finding that BIPA’s two most commonly asserted provisions, Sections 15(a) and (b), are subject to the longer five-year limitations period, the opinion ensures that the tsunami of class action BIPA filings will continue to flood the courts for the foreseeable future.

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