Biometric case defendant argues “grossly excessive” BIPA damages violate Constitution
Illinois company World Wide Technologies (WWT) is arguing that a potential class action law suit against it under the state’s Biometric Information Privacy Act (BIPA) should be thrown out for violating the U.S. Constitution’s prohibition of “grossly excessive” damages, the Madison—St. Clair Record reports.
The suit is the latest in a deluge of potential class action suits alleging biometric time and attendance systems were implemented without meeting BIPA’s requirements for informed consent. The law provides up to $1,000 or actual damages for each negligent violation and $5,000 or actual damages for intentional or reckless violation.
WWT Counsel Lauren Caisman argues that the damage are disproportionate “in light of the absence of any actual injury or harm to plaintiff and the putative class members.”
That line of argument may not hold up, given that the state Supreme Court declared violations “constitutes an invasion, impairment, or denial of the statutory rights of any person,” and are sufficient in themselves to establish standing early this year, and an attempt to limit the specific violations which establish standing has since been quashed by the First District Appellate Court.
The allegations brought against the company by an employee include both a failure to disclose the required information and obtain permission from the plaintiff, as well as that it disclosed the data to third party vendors, and lacks the necessary retention schedules and data destruction guidelines.
The plaintiff’s representative moved to certify a class action on May 6, and the defendant removed the action to federal court on May 10, subsequently filing notice of a constitutional challenge, according to the Record. Notice of the challenge has been sent to state Attorney General Kwame Raoul, as well as the plaintiff’s attorney.