The Illinois Biometric Privacy Act: A Comprehensive Guide to BIPA Litigation

Introduction to Biometric Privacy Laws in the United States

There are three states with independent laws on biometric privacy: Illinois, Texas, and Washington. However, out of these three, only Illinois grants the authority for private individuals to take legal action.

The Illinois Biometric Privacy Act (BIPA): An Overview

The Illinois Biometric Privacy Act (BIPA) was enacted in 2008 and serves as a comprehensive law governing the collection, retention, disclosure, and destruction of biometric identifiers (such as retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry) and biometric information.

Legal Interpretations and Evolution of BIPA

Legal interpretations of the BIPA continue to evolve, as more and more entities adopt new technologies to gather biometric data.

The Illinois Supreme Court Ruling and Its Implications

In 2019, the Illinois Supreme Court ruled that a violation of the statute itself, without demonstrating any actual harm or adverse effects, was sufficient grounds to bring a claim under the law (Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186).

Criticism of BIPA’s Lenient Requirements for Initiating a Lawsuit

This decision has drawn criticism from commentators who argue that the law’s lenient requirements for initiating a lawsuit have led to an influx of litigation based on mere procedural violations. These critics contend that this situation has resulted in a surge of boilerplate complaints filed by plaintiffs’ attorneys.

Beaumont Costales: A Pioneer in BIPA Actions

This is a phenomenon we can track in real-time. Beaumont Costales, a law firm based in Chicago, has acquired an expertise in these types of complaints, specializing in BIPA actions involving the improper collection of employee fingerprints for timekeeping purposes.

Notable BIPA Cases

  • Marcus Harris v. Fort Dearborn Company (2023CH03548)
  • Miguel a. Gomez Ocampo v. Hyraforce, Inc. (2023CH3366)
  • Jennifer Foust v. Universal Logistics Holdings, Inc. (2023CH00374)
  • Nina Smith v. Caseyville Nursing & Rehabilitation Center, Inc. (2023CH04468)
  • Josefina Nery v. Mighty Cake Company (2022CH10867)
  • Roberto Correon v. Sound Seal, Inc. (2023CH03380)

Defense Strategies in BIPA Cases: The Case Transfer Tactic

In BIPA cases, one common litigation strategy employed by the defense is to transfer the case to a federal court. This tactic was utilized in the case of Michael Lloyd v. Sysco Chicago, Inc. and Sysco Corporation (2022CH10508).

The Impact of Bryant v. Compass Group USA, Inc. on BIPA Litigation

In Bryant v. Compass Group USA, Inc., the United States Court of Appeals concluding that BIPA complaints that assert more than a bare procedural violation may see their cases remain in federal court, especially if they allege an invasion of privacy or an informational injury vis-a-vis Section 15(b)’s informed consent regime.

Navigating Federal Jurisdiction in BIPA Cases

If a plaintiff wants their case to remain in state court, they may need to plead around federal jurisdiction, possibly by formulating claims solely under Section 15(a) of the statute.

Prior to founding Trellis, Nicole Clark was a business litigation and labor and employment attorney who handled litigation in both state and federal courts. She regularly represented multinational corporations in claims ranging from high-profile trade secret disputes to complex class-action litigation. Frustrated by sending internal emails and collecting anecdotes on judges in order to make strategic case recommendations, she built Trellis to solve her own need for access to data, information, and analytics at the state trial court level. Prior to law school, Nicole attended Bard College, beginning her college coursework at the age of sixteen. She graduated with honors from University of Massachusetts Amherst with a BA in Journalism, and received her Juris Doctorate from Rutgers School of Law in Newark, NJ. Nicole sat for the Bar Exam in California, Massachusetts, and Connecticut, and remains licensed to practice law in all three states.