The Privacy Class Action Review - 2023 - Report - Page 29
place, they did not restrict the defendant’s speech and therefore did not implicate the
First Amendment. For these reasons, the court denied the defendant’s motion to
dismiss.
In Trio, et al. v. Turing Video, Inc., 2022 U.S. Dist. LEXIS 173465 (N.D. Ill. Sept. 26,
2022), the plaintiff, a former grocery store employee, filed a class action alleging that
the defendant’s COVID-19 screening kiosks violated the BIPA. The defendant filed a
motion to dismiss the plaintiff’s claims, and the court denied the motion. The plaintiff
specifically alleged that the defendant sold “products integrated with artificial
intelligence,” including the Turing Shield, a “kiosk that allows Turing’s customers to
screen their employees for COVID-19.” Id. at *2-3.
The plaintiff contended that the Turing Shield screens a user’s temperature through the
device’s camera, thereby using its “artificial intelligence algorithm” to recognize the user
based on his or her facial geometry, and detecting whether the user is wearing a
protective mask. The plaintiff also alleged that data collected through the Turing Shield
was transmitted to third parties who host that data. The plaintiff used the Turing Shield
at the start of each workday as part of the store’s COVID-19 screening process. Based
on her use of the device, the plaintiff claimed that the defendant violated the BIPA by
failing to inform her that the Turing Shield would collect her biometric data; and
disseminating her biometric data to third parties without her consent.
The defendant moved to dismiss on three grounds, including: (i) that the court lacked
personal jurisdiction; (ii) the plaintiff’s claims were preempted by the Labor Management
Relations Act; and (iii) the plaintiff failed to state a claim upon which relief could be
granted. The defendant first argued that the court lacked specific personal jurisdiction
because the defendant was a non-forum (i.e., California) resident that sold the devices
used by the plaintiff to a non-party, Jewel-Osco (also a non-forum resident), and JewelOsco brought the devices into Illinois without the defendant’s involvement.
The court held that the evidence – which showed that defendant had over 30 Illinoisbased customers and had shipped Turing Shields into Illinois – established that it had
the requisite minimum contacts with Illinois to establish personal jurisdiction. The court
next addressed Turing’s argument that the plaintiff’s claims were preempted by § 301 of
the Labor Management Relations Act (the LMRA). The plaintiff was represented by a
union and subject to a collective bargaining agreement (CBA) while employed at JewelOsco. However, the court found that the plaintiff’s claims were not preempted by the
LMRA because it could resolve the claims without interpreting the CBA.
Finally, the court rejected the defendant’s arguments that: (i) the plaintiff failed to allege
that Turing’s relevant conduct occurred in Illinois; and (ii) the Public Readiness and
Emergency Preparedness Act (the PREP Act) immunized it from BIPA liability.
Regarding extraterritoriality, the court held that the plaintiff sufficiently alleged that
Turing’s conduct occurred “primarily and substantially” in Illinois, thereby satisfying the
“extraterritoriality doctrine.” Id. at *29. Regarding PREP Act immunity, the court noted
that the PREP Act provides immunity from liability relating to the “use of a covered
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Duane Morris Privacy Class Action Review – 2023
