Duane Morris Class Action Review - 2023 - Report - Page 247
any actual harm from any alleged violation of BIPA. Accordingly, BNSF asked the court
to enter judgment as a matter of law against the plaintiff and in favor of BNSF, or, in the
alternative, to grant BNSF a new trial or substantially reduce the damages award
against BNSF. The motion remains pending as of the close of the year.
This landmark verdict showcases the potentially devastating impact of the BIPA statute
on unwary businesses across the state of Illinois that collect, use, or store biometric
information. Such a result will undoubtedly embolden the plaintiffs’ class action bar and
serve as an eye opener for businesses in Illinois. In the short term, companies can
expect an uptick in the number of BIPA class actions filed by the plaintiffs’ bar. While it
is almost certain that the verdict will be challenged on appeal in 2023, companies can
expect that plaintiffs’ lawyers will increase their settlement demands in other BIPA class
actions.
B.
Privacy Class Certification Rulings
In Fischer, et al. v. Instant Checkmate LLC, 2022 U.S. Dist. LEXIS 59143 (N.D. Ill. Mar.
31, 2022), the plaintiffs brought a class action alleging that the defendant’s background
check website violated the Illinois Right of Publicity Act. The plaintiffs filed a motion for
class certification for three separate classes, and the court granted in part and denied in
part the motion. The court granted plaintiffs’ motion for class certification of the SEO
directory and injunctive relief classes and denied certification of the search results class.
The defendant argued that the plaintiffs’ claims were subject to arbitration based on
agreement signed when they signed up to use the website. The court found that the
defendant waived his right to seek arbitration and the other class-waiver was limited to
claims arising from the terms of use, which the court held did not apply. Further, the
court found that liability could be determined on a class-wide basis for both the SEO
and injunctive relief classes because any individual issues could be determined to
exclude certain individuals from the class. However, the court ruled that as to the search
results class, the plaintiffs failed to meet the superiority requirement because the
database could not report what data was stored at any one historical point, such that it
could not be determined what data was reported to a third-party at any time. Since the
SEO directory class members’ claims did not require that the data be reported to a thirdparty, the same concern did not apply. As to the injunctive relief class, the court opined
that class-wide injunctive relief as the use of the defendant’s opt-out would be
susceptible to common proof. For these reasons, the court granted in part and denied in
part the plaintiffs’ motion for class certification.
C.
Other BIPA Class Action Rulings
Courts in Illinois decided a host of issues in 2022 arising under the BIPA. A sample of
those rulings demonstrates the innovative application of the BIPA by the plaintiffs’ class
action bar.
In Horn, et al. v. Method Products, PBC, 2022 U.S. Dist. LEXIS 67354 (N.D. Ill. Apr. 12,
2022), the plaintiff filed a class action against his employer alleging that the defendant
violated § 15(a), (b), and (d) of the BIPA when it required its employees to provide
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Duane Morris Class Action Review – 2023
