Duane Morris Class Action Review - 2023 - Report - Page 27
Trend # 6 – Privacy Class Actions Became An Intense Focus Of The
Plaintiffs’ Class Action Bar
Privacy litigation – in a multitude of forms and theories – revealed itself as the hottest
area of growth in terms of activity by the plaintiffs’ class action bar.
A.
The Illinois Biometric Privacy Act Continued To Drive Lawsuits
In 2022, the plaintiffs’ class action bar continued to focus on businesses and vendors
utilizing biometric technology and filed numerous class action lawsuits based on the
Illinois Biometric Information Privacy Act (BIPA).
Enacted in 2008, the BIPA regulates the collection, use, and handling of biometric
identifiers and information by private entities. Subject to limited exceptions, the BIPA
generally prohibits the collection or use of an individual’s biometric identifiers and
biometric information without notice, written consent, and a publicly-available retention
and destruction schedule. Although Texas and Washington have implemented similar
biometric protections, the BIPA provides for a private cause of action with aggressive
statutory penalties allowing for $1,000 per violation and $5,000 per intentional or
reckless violation. Because of this damages provision, the plaintiffs’ bar files almost all
BIPA lawsuits as class actions. Plaintiffs have focused more than one-third of BIPA
cases on fingerprinting and have focused roughly a quarter on facial recognition
surveillance.
The most noteworthy BIPA case of the year was Rogers, et al. v. BNSF Railway Co.,
Case No. 19-CV-3083 (N.D. Ill.), the first federal jury trial in a case brought under the
BIPA. After a week-long trial in the U.S. District Court for the Northern District of Illinois,
a jury found that BNSF recklessly or intentionally violated the law 45,600 times and
entered a verdict in favor of the class of 45,000 workers. The court thereafter awarded
damages against BNSF of $228 million. BNSF subsequently filed a motion for a new
trial arguing that none of the 45,000 class members suffered any actual harm and
raising constitutional concerns about the BIPA. That motion remains pending for
decision, and is almost sure to result in an appeal in 2023.
As BIPA class actions proliferate and businesses struggle to defeat such claims, the
Illinois Supreme Court is poised to clarify the scope of the statute of limitations
applicable to the BIPA in two important cases. In Tims, et al. v. Black Horse Carriers,
2022 Ill. LEXIS 89 (Ill. Jan. 26, 2022), it will decide whether a one-year statute of
limitations applies to BIPA claims involving “publication” of biometric data and whether a
five-year statute of limitations period applies to other BIPA claims. In Cothron, et al. v.
White Castle Systems, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021), the
Seventh Circuit asked the Illinois Supreme Court to provide much-needed clarification
on the accrual of BIPA violations, specifically whether certain BIPA claims accrue only
once upon the initial collection or disclosure of biometric information or whether a claim
accrues each time a company collects or discloses biometric information.
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023