Apple seeks reversal in remanded biometric data privacy suit

Rulings elsewhere clarify standing details

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Apple is asking a U.S. federal court judge to reverse a judgement remanding a pair of claims to state court, arguing that they should be dismissed instead, Law360 reports.

U.S. District Judge Nancy J. Rosenstengel’s ruling that plaintiffs do not allege their biometric data was sold or otherwise used for profit by Apple undercuts their standing, the company’s representation said in a court filing, as alleging that Apple profited from sales of devices with facial recognition does not apply to Section 15(c) of the Illinois Biometric Information Privacy Act (BIPA).

The company also argues that trying the case in state court undermines the court’s efficiency, as plaintiffs would have to re-establish standing with new allegations which could lead to the same jurisdictional question.

Federal standing and workers compensation pre-emption clarified

The plaintiff in a claim against automotive supply company Dakkota Integrated Systems does have standing in federal court, the a Seventh Circuit panel has ruled, per a separate Law360 article, based on a broader complaint than one which had previously been used as precedent.

The ruling clarifies a previous judgement in the case of Bryant v. Compass Group USA Inc., in which a claim under BIPA Section 15(a), which requires a written policy to satisfy the notice part of the statutes consent requirements. A 15(a) claim in the Bryant case was remanded to state court for lack of federal standing, but

Two of three claims by the plaintiff in the Dakkota case were dismissed, and a third remanded to state court on grounds that, based on Bryant, it lacked federal standing.

The Seventh Circuit has ruled that on the contrary, the plaintiff’s broad allegations fall outside the scope of the narrow Bryant ruling, as “unlawful retention of biometric data inflicts a privacy injury in the same sense that an unlawful collection does,” Law360 quotes the court as ruling.

The decision is expected to make it easier for plaintiffs to remove cases to federal court and keep them there.

Plaintiff Raven Fox alleges Dakkota entirely failed to meet its 15(a) obligations, including retaining her handprint after she left the company and sharing her data with a third-party database company. Bryant only alleged a failure to disclose its biometric data policies.

A representative of Dakkota said the company hopes to have the case dismissed as pre-empted under the Labor Management Relations Act, which already quashed the other two causes of action in the case.

An Illinois Appellate panel has ruled that BIPA claims and worker injury claims are distinguishable, Law360 writes in another article, meaning that biometric privacy claims are not blocked by the Compensation Act’s exclusivity provisions.

Intentional violations would fall under the Act’s exemption for non-accidental injuries anyway.

The appellate court based its decision on precedent from the Folta v. Ferro Engineering workers compensation case, and Rosenbach v. Six Flags.

Insurance coverage considered

As biometrics lawsuits continue to be filed in a growing number of jurisdictions, Law.com has an editorial from Hinshaw & Culbertson partners on how insurance coverage applies to claims.

The bottom line is that what is covered by businesses’ policies remains uncertain, even in places like Illinois where the law is not in the midst of changes, and answers will likely come gradually through the courts.

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