Jurisdiction and pre-emption in biometric privacy suits may soon be clarified

Jurisdiction and pre-emption in biometric privacy suits may soon be clarified

The regular movement of Biometric Information Privacy Act (BIPA) suits to the Northern District of California may only increase as plaintiff’s lawyers attempt to take advantage of different interpretations of legal standing, Law.com writes.

Some cases are moved to the district court due to contractual requirements, as was the case in Facebook’s recently-settled case. The social media company’s user agreement compelled cases to be brought in the Northern District of California. Other cases may be moved there to try to chase the gaudy numbers of the Facebook settlement, on the theory that the venue helped the plaintiffs. A lawyer who represented Facebook says recent suits against Google may have been filed there in the hopes of a sympathetic interpretation of the law.

With the Ninth Circuit Appeals Court ruling that creating and storing a biometric template indefinitely is sufficient to establish standing, the Northern District of Illinois has effectively ruled the opposite.

The Northern District of Illinois and the Seventh Circuit Court of Appeals also have a reputation for enforcing jurisdiction more rigidly than other locales.

Different server locations and technologies such as cloud computing could complicate jurisdictional issues, BIPA lawyer Mary Smigielski of Lewis Brisbois tells the publication. Smigielski also notes that those issues may be resolved by the Northern District of California in the future.

The majority of cases are still expected to be heard in Illinois either way.

A potential class action suit against Norfolk Southern Railway has been removed from Cook County Circuit Court to federal court, meanwhile, according to Legal Newsline. The suit alleges the company failed to disclose the required information to employees.

A team of lawyers from Faegre Drinker Biddle & Reath LLP write for JD Supra that companies doing business in Illinois should be aware of a pair of cases, with one recent and one pending ruling that may limit BIPA’s scope.

An appellate court in Illinois will decide in McDonald v. Symphony Bronzeville Park whether the Illinois Workers’ Compensation Act pre-empts BIPA, meaning that certain cases would be treated as employment injuries.

A federal district judge recently ruled that a union contract covering the collection of fingerprints pre-empts BIPA under federal law, Bloomberg Law reports.

Cook County Circuit Court has already ruled in McDonald v. Symphony Bronzeville Park that the “injury” entailed by failures to meet the informed consent requirements of the law occurs only at the first instance of collection, and the statute of limitations extends therefore from that time.

BIPA does not explicit set out a statute of limitations or when the time period is counted from.

“How these developments will affect the recent avalanche of BIPA litigation remains to be seen, but these cases present potentially viable arguments that defendant-employers should evaluate and consider,” according to the four attorneys.

A preliminary settlement for $467,500 has been reached, meanwhile, between Multimedia Sales and Marketing and employees who used a fingerprint biometric system, according to Law360.

Grocery store chain owner Albertson’s, meanwhile, is petitioning the State Supreme Court to hear its argument that BIPA is unconstitutional on grounds that the state’s foundational document prohibits legislation targeting some companies and leaving others out, Law360 reports in another article. A motion from the company to dismiss the suit was denied by a Cook County Circuit Court judge. The defense sounds similar to one Facebook unsuccessfully attempted several years ago. Bloomberg Law also reports that Aldi, another Illinois grocery chain, has been sued by a former employee for the usual alleged violations of BIPA’s informed consent rules for its biometric time and attendance system.

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