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Legal wrangling over legal wrangling in 3 US biometric privacy cases

Legal wrangling over legal wrangling in 3 US biometric privacy cases

Three U.S. biometric privacy court cases are in the news, although they are about how to handle the cases, not precisely about underlying legal questions.

The first case involves a significant case under the state of Illinois’s landmark Biometric Information Privacy Act. According to trade publication Law360, a federal judge is cautioning lawyers for BNSF Railway about their request for a new damages trial under BIPA.

Rogers v. BNSF last year was the first BIPA trial to go before a jury, and the rail firm was found liable for damages of $228 million in October. BNSF has left few options for defense unexplored.

The judge, Matthew Kennelly listened to the request before warning the defendant’s attorneys that they might be forced to publicly address evidence involving BNSF’s finances that the same lawyers convinced him to exclude from the initial class action, according to reporting by Law360.

Kennelly decided damages in October – the maximum $5,000 per class member – for recklessly or intentionally violating BIPA 45,600 times. The lead plaintiff, a truck driver entering BNSF property, had given three fingerprints in a biometric security system without getting driver’s express consent.

The rail company says the jury should have decided the punishment. In a recent case, Cothron v. White Castle, heard by the state’s Supreme Court, the justices said damage awards are discretionary. The jury should have decided, the defense maintains.

This could be a stalling tactic as there are few guidelines for a jury to follow in deciding damages, a factor that would draw out a resolution. There is a nascent move in the Illinois legislature to defang BIPA.

Another article by Law360 sketches a 2022 case that cannot get off the starting blocks for having to decide who is being sued.

An adult entertainment club, Scores Chicago O’Hare, is being sued under BIPA for collecting fingerprint scans from employees without their express consent.

Stone Park Entertainment, which operates as Scores, tried to get out of the suit by saying Stone Park’s co-owner was not named in the suit. A federal judge ruled last week that that was not enough to prevent the putative class action.

And Badger Mutual Insurance, whose clients include Stone Park, last fall has said it has no responsibility to cover the lawsuit.

The final case is Baker v. Match Grove (otherwise known as dating service Match.com), No. 22cv6924. In it, the plaintiff subscribed to Match’s OKCupid and Tinder in 2016. In the process Marcus Baker had to submit images of himself, which reportedly were analyzed and stored.

Claiming he was asked for express consent to collect, analyze and keep the photos, the plaintiff filed a BIPA putative class action, seeking individual damages of $20,000. Here is where it gets complicated.

The subscription contract Baker signed stated that disputes would be handled in arbitration and waived the right to file a class action. The contract had an exception: Either party could exercise the right to instead sue in small claims court.

Baker chose arbitration but Match wanted small claims court, precluding arbitration.

The plaintiff sued Match in the Circuit Court of Cook County, Ill., and Match were successful in moving the case to a federal court and then moving for dismissal in favor of small claims court of the U.S. District Court for North Texas.

The judge noted that small claims does not handle cases with $10,000 or more riding on it, so that was not an option.

Last week, the district judge, Manish Shah, rejected the motion to dismiss and approved, as requested by Match, moving the case to Texas, which he referred to as “valid forum selection” on the company’s part.

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