BIPA

The Illinois Supreme Court has ruled that separate claims under the state’s Biometric Information Privacy Act (BIPA) accrue “with every scan or transmission” of a person’s biometric information—rejecting the idea that only a single claim accrues at the start of a series of similar scans or disclosures.

The decision, Cothron v. White Castle, substantially increases potential damages exposure for BIPA defendants.  The potential for large monetary awards is likely to spur more BIPA lawsuits in Illinois—and potentially beyond, as several other States have similar privacy laws taking effect in 2023.  At the same time, however, Cothron establishes that trial courts have discretion to determine the appropriate amount of statutory damages (subject to a $5,000-per-violation cap), and suggests that it would be an abuse of discretion for a trial court to permit such a sizeable award that a company’s financial viability would be threatened. Continue Reading New BIPA Claims Accrue “With Every Scan or Transmission” of Biometric Information, Says the Illinois Supreme Court  

The Ninth Circuit recently held that the Children’s Online Privacy Protection Act, which gives the Federal Trade Commission  authority to regulate the online collection of personal information from children under the age of 13, does not preempt consistent state law, potentially increasing the risk of class action litigation based on alleged COPPA violations.  See Jones

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.Continue Reading Alabama Federal Court Finds Choice-of-Law Provision Bars BIPA Privacy Lawsuit Against Online Examination Company

Following a week-long trial, a jury in Illinois awarded a plaintiff class of truck drivers a $228 million verdict against BNSF Railways for violations of the Illinois Biometric Information Privacy Act (“BIPA”).  The large verdict, arising from the first case to go to trial under the 2008 law, highlights the potential impact of class actions brought under this statute.Continue Reading Illinois BIPA jury verdict highlights rising prominence of class actions based on state privacy statutes

Last week, an Illinois federal district court granted the defendant’s motion to stay in Stegmann v. PetSmart, No. 1:22-cv-01179 (N.D. Ill.).  The case implicates the evolving law surrounding the scope of the Illinois Biometric Information Privacy Act (“BIPA”) and  a pending Illinois Supreme Court case that could provide an important defense to certain BIPA suits.Continue Reading Federal Court Stays Suit Implicating Accrual of Claims Under the Illinois Biometric Information Privacy Act

Last week, a federal court in Illinois dismissed a putative class action complaint alleging violations of the Illinois Biometrics Information Privacy Act (“BIPA”) for engaging in “impermissible group pleading.”  The ruling serves as a reminder that a complaint that fails to plead specific facts as to each defendant does not meet the Rule 8 pleading

An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (“BIPA”) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.).  The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals’ unique facial biometric identifiers and corresponding biometric information.  Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPA’s express exemption for  photographs.  The court rejected these grounds, and declined to dismiss the BIPA claims.Continue Reading Court Rejects Dismissal of Illinois Biometric Information Privacy Act Against Clearview in Pending Multidistrict Litigation

On Thursday, the Illinois Supreme Court unanimously ruled in McDonald v. Symphony Bronzeville Park LLC that the exclusivity provisions of the state’s workers’ compensation statute do not preclude liquidated damages claims under the Biometric Information Privacy Act.  The decision narrows the defenses available to employers facing employment-related BIPA claims.Continue Reading Illinois Supreme Court Rules Workers’ Compensation Act Does Not Bar BIPA Liquidated Damages Claims