Duane Morris Class Action Review - 2023 - Report - Page 248
biometric scans each time they clocked in and out of work. The defendant moved to
dismiss the complaint, or in the alternative, stay the complaint pending the outcome of
appeals of four other BIPA cases. The court granted the defendant’s motion to dismiss
the § 15(a) and (d) claims, but denied the defendant’s motion to dismiss the § 15(b)
claim and denied the motion to stay. Id. at *1-2. The defendant argued that the plaintiff
failed to sufficiently plead his § 15(d) claim because the complaint did not suggest that
the defendant ever disclosed the plaintiff’s biometric information. The court agreed. It
held that the plaintiff’s conclusory allegations merely parroted the statutory language. Id.
at *8. Further, the court dismissed the plaintiff’s § 15(a) claim on the grounds that
because the plaintiff alleged that the defendant did not have a policy setting forth a
purpose for collecting his biometric information, under the statute, the defendant could
retain that information for up to three years after the plaintiff’s employment ended. Id. at
*10. Finally, the court held that a stay pending various Illinois Supreme Court appeals
was not warranted since the defendant did not identify persuasive indications that the
Illinois Supreme Court will decide the limitations and accrual issues differently than the
lower courts' decisions. Id. at *14. Accordingly, the court granted in part defendant’s
motion to dismiss, and denied defendant’s motion to stay.
In Wilks, et al. v. Brainshark, 2022 U.S. Dist. LEXIS 174271 (N.D. Ill. Sept. 26, 2022),
the plaintiff, a sales employee, filed a class action alleging that the defendant violated
various provisions of the BIPA through its use of facial scanning technology for
purposes of recording presentations. The defendant filed a motion to dismiss, and the
court denied the motion. The plaintiff alleged that the defendant failed to obtain users’
consent prior to their upload of facial geometry to the defendant’s database. The plaintiff
further asserted that the defendant failed to inform her and others on how it planned to
retain and manage the data, did not have a publicly available policy detailing its data
collection and management, and did not have any written policy regarding the data
collection. The defendant argued that: (i) the plaintiff's claims failed pursuant to Illinois'
Extraterritorial Doctrine; (ii) the plaintiff’s complaint failed to allege that the defendant
violated sections 15(a) or (b) of the BIPA; (iii) the plaintiff failed to allege the requisite
state of mind for monetary damages; and (iv) that the BIPA violates the First
Amendment because it constitutes an unconstitutional restraint on commercial speech.
Id. at *4. The defendant contended that the plaintiff’s allegations that the plaintiff lived in
and used the database in Illinois could not suffice to plausibly suggest that the
defendant’s conduct occurred primarily or substantially within Illinois. Id. at *5. The court
explained that a bright-line rule for determining whether the alleged conduct occurred in
Illinois is not typically applied, but rather a consideration of the "totality of
circumstances.” Id. at *6. The court concluded that at this early stage of the litigation,
the plaintiff’s allegations were sufficient to plausibly suggest the conduct occurred
"primarily and substantially" in Illinois, as plaintiff asserted that the defendant contracted
with Illinois entities, including the plaintiff's employer, to provide its services to clients
operating within Illinois, and provided those Illinois entities with analyses of its geometric
scans, thereby taking specific actions toward the plaintiff directed at Illinois. Further, the
defendant argued that the complaint failed to allege a § 15(b) violation because it only
collected videos, not biometric information, and that a “video of a face" did not clearly
fall within the definition of "biometric identifier" because the definition does not include
"videos" or define "scan of face geometry.” Id. at *10. The court rejected this argument.
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Duane Morris Class Action Review – 2023
