In 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.
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Two Recent Developments Promise to Shed Light on Accrual of BIPA Claims
In 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
TCPA Turnstile: New Year, Same TCPA – For Now (TCPA Case Update Vol. 14)
One of the few things that hasn’t changed significantly since our last TCPA update is, well, the TCPA. We have a new year, a new President and multiple new COVID vaccines. And after the December oral argument in Facebook v. Duguid before the Supreme Court, 2021 could be the year when we receive clarity on the critical TCPA question of what constitutes an automatic telephone dialing system (“ATDS”). Indeed, the argument seemed positive for the TCPA defense bar, with Justices Alito and Thomas chafing at the anachronistic nature of the statute and Justices Sotomayor and Gorsuch expressing concerns about the idea that every cellphone user could be subject to civil liability. But for now, the TCPA litigation landscape remains the same bizarre, often inconsistent quagmire that it always has been. We’ll continue to be your guide through the morass, and we summarize here developments since our last update, listed by issue category in alphabetical order.
Continue Reading TCPA Turnstile: New Year, Same TCPA – For Now (TCPA Case Update Vol. 14)
TCPA Turnstile: No summer vacation for the TCPA defense bar (TCPA Case Update Vol. 13)
Many had hoped that the summer of 2020 might bring the end of the TCPA as we know it, by way of the Supreme Court’s decision in Barr v. American Association of Political Consultants. Of course, that’s not how things played out. The government-backed debt exception is dead, but the rest of the TCPA is still very much alive. And while the pace of litigation has slowed because of the ongoing COVID-19 pandemic, TCPA decisions continue to roll in and there have been new developments before the FCC. We reviewed the TCPA cases published and other developments since our last update and compiled the most noteworthy items, listed below by issue category in alphabetical order.
Continue Reading TCPA Turnstile: No summer vacation for the TCPA defense bar (TCPA Case Update Vol. 13)
TCPA Turnstile: As we wait for a ruling in Barr, new case law abounds (TCPA Case Update Vol. 12)
Undoubtedly, the biggest TCPA development in the last month was the recent Supreme Court oral argument in Barr v. American Association of Political Consultants Inc., Case No. 19-631, which has the potential to upend TCPA jurisprudence as we know it. While we wait for a Supreme Court decision, the oral argument made a few things clear:
Continue Reading TCPA Turnstile: As we wait for a ruling in Barr, new case law abounds (TCPA Case Update Vol. 12)
Five Key TCPA cases to Know as We Enter the Second Quarter of 2020 (TCPA Case Update Vol. 11)
We’re a quarter of the way through 2020 — even if March may have seemed liked several years unto itself — and it is shaping up to be another big year for TCPA litigation. We’ve gone through the dozens of TCPA decisions published this year and identified the five most notable cases and storylines that we will be following closely for the rest of 2020.
Continue Reading Five Key TCPA cases to Know as We Enter the Second Quarter of 2020 (TCPA Case Update Vol. 11)
TCPA Turnstile: Case Update Vol. 10
Perhaps not surprisingly, there was no vacation this summer for TCPA litigation. We already addressed the 11th Circuit’s big decision on Article III standing in Salcedo. But we’ve also combed through the 150+ TCPA-related decisions over the summer to keep you apprised of the latest developments in this area of the law. We’ve compiled the most noteworthy decisions since our last report, and they’re listed below by issue category in alphabetical order.
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Common Sense Reigns in 11th Circuit: A Brief Annoyance Does Not Create Standing
For the vast majority of Americans, receiving a single unsolicited text message is a mere annoyance that does not warrant a federal lawsuit. But spurred by the language of the TCPA and a series of judicial decisions nationwide, a cottage industry has sprung up around filing putative class action lawsuits centered around this sort of alleged “harm.” Last week, the 11th Circuit dealt a significant blow to such cases, finding that receipt of a single unsolicited text message in violation of the TCPA is not sufficient to establish standing.Continue Reading Common Sense Reigns in 11th Circuit: A Brief Annoyance Does Not Create Standing
SCOTUS Catapults Class Arbitration Onto the Endangered Species List
On April 24, 2019, the U.S. Supreme Court issued an important decision touching a number of hot button issues and litigation threats facing American businesses — including class actions, arbitration agreements and data privacy.
The case, Lamps Plus, Inc. v. Varela, 17-988, 2019 WL 1780275 (U.S. Apr. 24, 2019), stemmed from a data breach in which a hacker posing as a company official “tricked” a Lamps Plus employee into disclosing the tax information of approximately 1,300 workers. Among those 1,300 workers was Frank Varela, the named plaintiff. Id. at *2. Following the data breach, Mr. Varela became the victim of identity theft when a fraudulent federal income tax return was filed in his name.
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For Whom the Bell Tolls? It Tolls for Thee, American Pipe and Successive Class Actions
Clients regularly ask: If we win this putative class action, can the opposition just file another one on behalf of another as-yet-unidentified putative class representative? Until June 11, the answer was “Maybe?” Now, the answer is clearly no.
In a unanimous decision, the Supreme Court (in reversing the Ninth Circuit) clarified