In the past few weeks, five putative class action lawsuits have been filed under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq., targeting defendants in the health care, senior living, commercial baking, meat processing and security industries. These recent suits join previously filed BIPA class actions against day care operators, tanning salons, video game manufacturers, hotel groups and supermarkets as well as much larger entities, including Facebook, Google, Shutterfly, Six Flags and Snapchat. All of these suits have similar allegations at their core; that defendants utilized employees’, customers’, or other persons’ biometric identifiers, such as fingerprints, voiceprints, retina scans or facial recognition technology, in violation of BIPA’s disclosure and consent requirements. All seek recovery of BIPA’s statutory liquidated damages of $1,000 for each negligent violation, or $5,000 for each intentional or reckless violation, injunctive relief, and recovery of attorneys’ fees and costs.

BIPA Background

Until the past 18 months, when the first of these suits was filed, BIPA has been a little-known statute. Enacted in 2008, BIPA was passed to protect against risk of identity theft resulting from the growing use of biometric technology to facilitate financial transactions and security screenings. 740 ILCS 14/5.

BIPA applies to both biometric identifiers, such as fingerprints, voiceprints, retina scans, and facial geometry, and other biometric information based on those identifiers to the extent used to identify an individual. 740 ILCS 14/10. BIPA is an important measure because, unlike such things as Social Security numbers and passwords that can be changed if necessary, biometrics are biologically unique and, when compromised, leave an individual without recourse. 740 ILCS 14/5.
Continue Reading

In a well-reasoned and encouraging decision to Internet businesses, the Northern District of Illinois recently found that even operating one of the largest, most popular websites in the world is not enough to create personal jurisdiction everywhere the site can be accessed. See Gullen v. Facebook, Inc., Case No. 15-cv-07681 (Jan. 21, 2016

In a decision subject to surprisingly little commentary by TCPA pundits, the Illinois Court of Appeals handed a significant victory to TCPA defense lawyers in November 2014 on the issue of “mooting” a putative class representative’s individual claim. See Ballard RN Ctr., Inc. v. Kohll’s Pharm. & Homecare, Inc., 2014 IL App. (1st) 131543 (2014). Despite the fact that the plaintiff had filed a motion for class certification before an offer of full and complete individual relief by the defendant, the court found that the plaintiff’s individual TCPA claim was still “mooted” because the motion for class certification that the plaintiff had filed was cursory and devoid of facts.  Id. at P59.

According to the court, “[I]f a putative class action plaintiff could circumvent the holding of Barber merely by filing a contentless ‘shell’ motion for class certification contemporaneously with its complaint, then it would effectively eviscerate the Barber decision.” Id. (referring to Barber v. American Airlines, Inc., 241 Ill. 2d 450, 455 (2011) (holding that class representative’s claim is moot when defendant offers full and complete relief before filing of motion for class certification)).
Continue Reading