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Dating app users sought for biometric data privacy suit

Insurance coverage, exclusions considered

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A biometric data privacy class action suit against dating sites and apps is inviting prospective plaintiffs to join on, while the courts try to wade through arguments that would widen and limit the scope of such claims under Illinois’ law, and companies and insurers try to wade through the implications of a recent precedent-setting decision.

The approval of nearly $329,000 in attorneys’ fees in a settlement agreement totalling just under $1 million, in a biometric data dispute between Lifespace Communities and 850 current and former employees, noted by Law360, illustrates the incentives at play.

Seeking plenty of plaintiffs

Illinois residents using dating sites OkCupid, Hinge, Tinder, Match.com, Plenty of Fish, OurTime, Chispa, and BLK are being invited to join a potential class action suit over allegations the Match Group Inc. sites violated Illinois’ Biometric Information Privacy Act (BIPA).

Law firm Labaton Sucharow LLP ​is pursuing claims on behalf of state residents who used any of the sites since 2015, alleging they used facial recognition scans without obtaining the required informed consent.

OKCupid was implicated in a lawsuit against startup Clarifai earlier this year regarding training data for a biometric algorithm.

EPIC argues against White Castle statute of limitations position

The Electronic Privacy Information Center (EPIC) has filed an amicus brief arguing that the defendant in Cothron v. White Castle, by arguing that the clock starts running on the statute of limitations for BIPA suits in the moment of the first violation, is attempting to improperly import arguments about Article III standing into BIPA analysis. Allowing the inclusion of those arguments in the federal court appal would effectively overrule the Illinois Supreme Court’s ruling in Rosenbach v. Six Flags, EPIC claims.

A suit against biometric time and attendance system provider Kronos is awaiting a decision on the statute of limitations question, and an amicus brief on behalf of White Castle was filed by a pair of trade groups last month.

Surveying the BIPA coverage landscape after insurance ruling

The Supreme Court of Illinois’ decision that insurance policies cover BIPA without language explicitly referring to biometric data or the Act itself has far reaching implications, according to an analysis in Law360.

The ruling means that commercial general liability policies like the one in question in West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan make insurers responsible for business owners’ liabilities, Tae Andrews of Miller Friel PLLC writes, as they cover advertising injuries, which include privacy violations. The ruling also means that the exclusion from coverage for statutory violations is narrowly defined to relate to specific advertising or communication statutes.

Points of contention for insurance coverage in BIPA disputes remain around employment-related practices exclusions, and an argument being made by insurers that access or disclosure of confidential or personal information blocks BIPA coverage.

McDonald’s insurers deny responsibility

American Family Mutual Insurance Co. is arguing the advertising injuries covered in a McDonald’s franchise-owner’s policy requires illegal disclosure, which is not alleged in the suit against the franchisee, Law360 writes. Given the decision above, that claim appears unlikely to succeed.

A similar argument has also been made by Old Republic Insurance in suits against the chain itself, saying the two suits against McDonald’s Corp., but based on employment and privacy-rights exclusions. The insurer said in a May filing that McDonald’s and six franchisees were sued in 2017, and separately in November 2020, but the chain did not notify Old Republic until February. The chain has since scored a victory (against plaintiffs, not its insurer) in removing the suit to federal court, due to the amount in question and location of the parties, as Bloomberg Law reports.

Exclusions argued

Pathfinder Software will face claims that it was party to BIPA violations be its client Innovative Heights, after an Illinois federal judge denied its motion for its inclusion to be dismissed, Law360 writes.

Pathfinder previously had its argument that BIPA is unconstitutional rejected, as the entities it said were being favorably treated are covered under the Gramm-Leach-Bliley Act.

Lewis University is arguing in Illinois federal court that it is protected by the Gramm-Leach-Bliley Act (otherwise known as the Financial Services Modernization Act) from BIPA responsibilities, Law360 writes in another article. Lewis University argues that it conducts “financial activities” as defined by the Act.

The university is being sued over its use of a biometric online exam-proctoring system from Respondus.

Plaintiffs argue that a suit against ProctorU, meanwhile, should proceed, according to Bloomberg Law, because the Proctor company’s claim that a stay is necessary to avoid prejudice by responding to discovery requests ignores the fact that plaintiffs have made no such requests, they argue in a filing.

The filing also argues that the stay would waste judicial resources.

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