BIPA defendants and their biometrics providers protected by common interest (sometimes)

A judge in the Northern District of Illinois has denied a motion from a plaintiff under the state’s Biometric Information Privacy Act to force Union Pacific to produce communications between it and the vendor that supplied its biometric security gates.

The decision implies that the common interest doctrine protects communication between biometrics vendors and their customers in BIPA cases, whether they are named as defendants or not, the National Law Review writes.

The article from a trio of attorneys with Hunton Andrews Kurth argues that the ruling supports efforts by BIPA defendants to coordinate defense strategies with other parties with the same legal interest. Using best practices in BIPA litigation can maximize the scope of that common interest, they write.

Fleury v. Union Pac. R.R. Co. is one of the first BIPA cases in which the precedent set by the White Castle ruling that damages can accumulate with each individual biometric scan was successfully invoked. Union Pacific was forced to turn over information about how many scans had been performed with its fingerprint-enabled gates to track employee time and attendance. The scans were performed without the railroad company first collecting informed consent, according to the plaintiff’s allegations.

Defendants and their partners can share common interest, even in the absence of a joint defense agreement, the judge ruled, explaining: “the defendant has some common legal interests with its software and hardware providers in a BIPA case.”

Common interest applies only “on a document-by-document basis,” however, U.S. Magistrate Judge Jeffrey Cole wrote, as quoted by Law360.

The biometric software was licensed to Union Pacific by Nascent, while the gates were provided by Remprex.

The ruling comes in the context of an absurdly drawn-out discovery process, including six missed discovery deadlines over the past five years.

Accrual ignored in preliminary White Castle settlement

A judge in the White Castle case has given preliminary approval to a $9.4 million settlement, according to the Cook County Record.

After attorneys have collected their 37.5 percent, or $3.5 million in fees, the 9,705 members of the plaintiff class will receive $968 each. The amount does not vary based on the number of scans performed by a particular class member.

BIPA’s private right of action allows plaintiffs to claim damages of $1,000 for each negligent violation.

In response to the ruling on claims accrual in Cothron, Illinois lawmakers have made some progress towards amending BIPA.

Article Topics

Biometric Information Privacy Act (BIPA)  |  biometrics  |  data privacy  |  lawsuits  |  time and attendance