Last week, the first jury trial under the Illinois Biometric Privacy Act (BIPA) resulted in a $228 million verdict in favor of the plaintiff and the class.
The case, Rogers v. BNSF Railway Co., was filed in May 2019 and was pending in the U.S. District Court for the Northern District of Illinois. A class was certified in March 2022. Plaintiff alleged that BNSF unlawfully scanned his and other truck drivers’ fingerprints for identity verification when he and they visited BNSF rail yards. He claimed the company took this scan without written notice or consent as required under BIPA. BNSF argued, among other things, that the third-party vendor it hired to control gate access was the only party to collect drivers’ fingerprints, and that BNSF therefore had not independently violated BIPA.
Pretrial briefing in the case was extensive. Each side filed several motions in limine seeking to bar or include certain evidence in the trial. For example, the Plaintiff found several references to use of “biometrics” or “biometric identities” on BNSF’s website that they alleged were responsive to former document requests. Anticipating objections from BNSF, Plaintiff filed a preemptive motion asking the court to permit them to introduce these exhibits at trial. Plaintiff were able to use this information at the trial and suggest that BNSF was aware of the biometric collection and that BNSF itself was collecting the information.
Continue reading “First Biometric Information Privacy Act Trial Results in $228M Verdict”
The Illinois Supreme Court ruled that workers compensation preemption is not a defense to plaintiffs’ claims for damages under the Illinois Biometric Information Privacy Act. The February 3, 2022 ruling in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511 will likely awaken many long-stayed BIPA class action lawsuits and pave the way for new ones to be filed.
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Technology that determines an individual’s identity or location has been the subject of significant media attention in the first half of 2018: Amazon made news with the sale of its facial recognition technology to law enforcement, the U.S. Supreme Court ruled that the government generally must obtain a warrant to access certain types of geolocation information, California arrested the Golden State Killer using the DNA information of a relative, and Facebook came under fire for the way in which Cambridge Analytica accessed the data of tens of millions of users. Garnering less attention, but of no less importance, are the legislative efforts underway in the federal government and in many states to regulate these emerging technologies and limit the ways in which this information can be collected.
Continue reading “New Biometrics and Geolocation Legislation Proposed in U.S. Senate, More States Consider Similar Laws”
A federal circuit court recently rules that there was no actionable violation of the Video Privacy Protection Act (VPPA) when ESPN shared a user’s movie streaming device serial number with a third party.
A three judge panel of the U.S. Court of Appeals of the 9th Circuit unanimously affirmed a district court decision dismissing a claim alleging a violation of the VPPA, holding that the serial number of a Roku movie streaming device is not “personally-identifiable information” under the statute in Eichenberger v. ESPN, Inc., No. 15-35499 (9th Cir.). In so doing, however, the Ninth Circuit also joined the Third and Eleventh Circuits in holding that, when alleging a violation of the VPPA, allegations of additional consequences stemming from the violation are not necessary to meet Article III’s standing requirement.
Continue reading “Limits of the VPPA: Ninth Circuit Panel Upholds Dismissal of VPPA Claim in Eichenberger v. ESPN, But Creates Low Bar for Satisfying Article III”