Tag: Illinois

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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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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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