An Alabama district court recently granted dismissal of a class action asserting Illinois Biometric Information Privacy Act (“BIPA”) claims brought by Illinois residents against ProctorU, Inc. in Thakkar v. ProctorU Inc., No. 2:21-cv-01565 (N.D. Ala.).  The district court concluded that a choice-of-law provision contained in the terms of service and which required the application of Alabama law precluded the application of BIPA to the conduct alleged.

In Thakkar, plaintiffs alleged that ProctorU—a company that develops, owns, and operates an online proctoring software that provides remote proctoring services—collected, stored, and used biometric data, specifically facial geometry, of test takers who used their software.  Plaintiffs, all students who were also Illinois residents, used ProctorU while taking online examinations.  Plaintiffs alleged that ProctorU violated BIPA by not having consent to capture, store, or use their biometric data and by continuing to retain their biometric data beyond its intended use.  The case was initially brought in an Illinois federal district court before being transferred to Alabama based on a forum selection clause in the terms of the service.

The Alabama district court concluded that the choice-of-law provision, requiring the application of Alabama law, barred the BIPA claims brought in Thakkar. 

The court concluded that the BIPA claims were governed by the choice-of-law provision in the terms of service.  Plaintiffs argued that the choice-of-law provision only applied to claims arising out of or based on the terms of service, and not to those based on actual services rendered.     The district court rejected these “line drawing” arguments.  The court found that the claims arose out of both ProctorU’s actual rendered services and the terms of service where: (1) ProctorU’s services are subject to the separate ProctorU privacy policy; and (2) this privacy policy, which was implicated by the claims, was expressly incorporated into the governing terms of services.  The court further rejected Plaintiffs’ arguments that the choice-of-law provision did not apply because the BIPA claims were statutory torts, which would evade the application of a choice-of-law provision in certain jurisdictions.  The court found that the BIPA claims were within the scope of the choice-of-law provision, that Alabama law therefore governed, and that the claims should be dismissed because it was not actionable under Alabama law.