FingerprintIn yet another blow to employers facing claims under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.), the Illinois Supreme Court held that the Illinois Workers’ Compensation Act (“IWCA”) (820 ILCS 305/1 et seq.) does not preempt BIPA claims for statutory damages brought by employees.  The Court’s holding in McDonald v. Symphony Bronzeville Park, LLC, et al. awas not unexpected by most BIPA practitioners, and will likely trigger the resumption of many dozens of BIPA workplace lawsuits which were stayed while the Illinois justices considered the case.
Continue Reading Illinois Supreme Court Eliminates Another BIPA Defense

FingerprintIn the aftermath of two recent appellate court decisions addressing when claims under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.) accrue, it appears likely that the Illinois Supreme Court will need to provide clarity on this critical question. First, the Appellate Court of Illinois, First District, found in Watson v. Legacy Healthcare Financial Services, LLC, et al.  that claims under sections 15(a) and (b) of the Act accrue with each and every capture and use of a plaintiff’s biometric identifier or information. Second, in Cothron v. White Castle System, Inc. the Seventh Circuit Court of Appeals declined to directly address the issue of when a claim under BIPA accrues, and instead has certified the question for review by the Illinois Supreme Court. While the holding in Watson provides some clarity as to when certain BIPA claims accrue, it leaves open critical questions regarding how to calculate: (i) the number of BIPA violations; and (ii) monetary damages under the Act.
Continue Reading Two Recent Developments Promise to Shed Light on Accrual of BIPA Claims

Welcome back to Vedder Price’s BIPA Bellwether series. As with our TCPA Turnstile, we intend for the BIPA Bellwether to serve as a periodic report on latest developments.

Last week, the Southern District of Illinois decided to dismiss the lawsuit in Barton v. Swan Surfaces LLC, No. 20-CV-499-SPM, 2021 WL 793983 (S.D. Ill. Mar. 2, 2021). In doing so, the Southern District joined the U.S. Northern District’s trend of finding claims brought under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14 et seq., to be preempted by the federal Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, when interpretation of a collective bargaining agreement is required. This growing trend suggests that Illinois federal courts are beginning to rein in the cottage industry among class action attorneys that BIPA has sparked.

Continue Reading BIPA Bellwether: New U.S. Southern District of Illinois Decision Holds Labor Management Relations Act Preempts Employee BIPA Claims

FingerprintWelcome to Vedder Price’s inaugural edition of the BIPA Bellwether.  As with our TCPA Turnstile, we intend for the BIPA Bellwether to serve as a periodic report on latest developments.

Last week, the Supreme Court of Illinois issued an order that likely will clarify when Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14 et seq., claims may be asserted in the employment context.  This order comes at a time when BIPA cases are surging and Illinois appellate court decisions interpreting the act are scarce.  As a result, the Court’s order—and the decision that will follow—signal a potential avenue for dismissal that may provide much needed guidance for BIPA litigants.
Continue Reading BIPA Bellwether: New Illinois Supreme Court Order Foreshadows Employment Guidance