Application of BIPA amendment to pending biometric data privacy cases disputed

Plaintiffs and defendants are arguing over whether an amendment to Illinois’ Biometric Information Privacy Act limiting liability to one count for each biometric process applies to cases currently before the courts.

State legislators amended BIPA earlier this year to make clear that violations do not accrue with repeated scans of exactly the same type.

Now, plaintiffs in a pair of cases have filed motions asking for a federal court to reject a ruling that the change applies to all cases not yet settled.  That ruling was made by Judge Elanie E. Bucklo of the Northern District of Illinois last week, Law360 reports.

Separate lawsuits involving Sabert Corp., a food service company and Viking SupplyNet, a sprinkler parts distributor, accuse the businesses of violating BIPA’s informed consent requirements when scanning employee’s fingerprints for biometric time and attendance tracking.

Bucklo ruled that the amendment applies to a lawsuit she was presiding over against Central Transport LLC, and the two above companies each argued that the same criteria apply to them. That means the potential damages do not meet the $75,000 threshold for federal diversity jurisdiction, and the suits should therefore be dismissed.

The plaintiffs in both cases argue that five state court decisions differ from Bucklo’s, and must be taken into account.

The companies returned that those decisions were “mixed,” and plaintiffs fired back that their claims are “inaccurate and misleading.” Four of the decisions issued since October were “persuasive reasoned decisions,” plaintiffs argue.

The difference in interpretation comes from Bucklo’s contention that the amendment was made in response to a call for clarification from the State Supreme Court, and therefore applies to all cases from that time forward. The amendment does not include language specifying that it applies retroactively.

Further motions or appeals could follow.

Article Topics

biometric data  |  biometric identifiers  |  Biometric Information Privacy Act (BIPA)  |  lawsuits