biometric scans each time they clocked in and out of work. The defendant moved todismiss the complaint, or in the alternative, stay the complaint pending the outcome ofappeals of four other BIPA cases. The court granted the defendant’s motion to dismissthe § 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 plaintifffailed to sufficiently plead his § 15(d) claim because the complaint did not suggest thatthe defendant ever disclosed the plaintiff’s biometric information. The court agreed. Itheld 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 thatbecause the plaintiff alleged that the defendant did not have a policy setting forth apurpose for collecting his biometric information, under the statute, the defendant couldretain 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 appealswas not warranted since the defendant did not identify persuasive indications that theIllinois Supreme Court will decide the limitations and accrual issues differently than thelower courts' decisions. Id. at *14. Accordingly, the court granted in part defendant’smotion 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 violatedvarious provisions of the BIPA through its use of facial scanning technology forpurposes of recording presentations. The defendant filed a motion to dismiss, and thecourt 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 plaintifffurther asserted that the defendant failed to inform her and others on how it planned toretain and manage the data, did not have a publicly available policy detailing its datacollection and management, and did not have any written policy regarding the datacollection. 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 defendantviolated sections 15(a) or (b) of the BIPA; (iii) the plaintiff failed to allege the requisitestate of mind for monetary damages; and (iv) that the BIPA violates the FirstAmendment because it constitutes an unconstitutional restraint on commercial speech.Id. at *4. The defendant contended that the plaintiff’s allegations that the plaintiff lived inand used the database in Illinois could not suffice to plausibly suggest that thedefendant’s conduct occurred primarily or substantially within Illinois. Id. at *5. The courtexplained that a bright-line rule for determining whether the alleged conduct occurred inIllinois is not typically applied, but rather a consideration of the "totality ofcircumstances.” 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 contractedwith Illinois entities, including the plaintiff's employer, to provide its services to clientsoperating within Illinois, and provided those Illinois entities with analyses of its geometricscans, thereby taking specific actions toward the plaintiff directed at Illinois. Further, thedefendant argued that the complaint failed to allege a § 15(b) violation because it onlycollected videos, not biometric information, and that a “video of a face" did not clearlyfall 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.247© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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