Duane Morris Class Action Review - 2023 - Report - Page 251
reasoned that Section 15(b) requires not just a signed consent form, but also written
notice that the biometric information is being collected and stored, and the purpose and
length of time of the storage. Since the court found that the consent agreements did not
contain the full information required, it rejected the defendants’ argument. Third, the
court ruled that the defendants’ argument that the BIPA did not apply because of
statutory exemption was without merit, as none of the asserted exemptions applied to
the plaintiffs. Fourth, the court determined the five-year statute of limitations period
applied to the plaintiffs’ claims such that the claims were timely-filed. Although the court
noted that the statute of limitations issue was before the Illinois Supreme Court, it
observed that the defendants did not provide any persuasive indications that the Illinois
Supreme Court will apply a one-year statute of limitations when it decides Tims, et al. v.
Black Horse Carriers, Inc., 452 Ill. Dec. 48 (Ill. Jan 26, 2022). The court, therefore,
declined to dismiss the claims on this basis. Finally, the court turned to the defendants’
argument that the plaintiffs’ request for liquidated damages should be dismissed
because they failed to plausibly allege recklessness or willfulness. The court determined
that since requests for liquidated damages are not claims under the BIPA, but rather
demands for relief, the plaintiffs were not required to plead facts showing the
defendants’ recklessness or willfulness.
In Rogers, et al. v. BNSF Railway Co, 2022 U.S. Dist. LEXIS 173322 (N.D. Ill. Sept. 26,
2022), the plaintiff, a truck driver, filed a class action lawsuit alleging that the defendant
unlawfully required drivers entering the company’s facilities to provide their biometric
information through a fingerprint scanner. The plaintiff asserted that the defendant
collected the drivers’ fingerprints without first obtaining informed written consent or
providing a written policy that complied with the BIPA and therefore violated §§ 15(a)
and (b) of the BIPA. The defendant argued that it did not operate the biometric
equipment and instead sought to shift blame to a third-party vendor who operated the
biometric equipment that collected drivers’ fingerprints. The court ordered the matter to
trial. The defendant subsequently filed a motion in limine to exclude evidence,
testimony, or argument suggesting that it could be held liable under the BIPA for any
acts by third parties. The court denied the defendant’s motion. The defendant
contracted with a third-party company, Remprex, to operate the equipment that
collected biometric information, which Remprex obtained without following the notice
and consent requirements in § 15(b). The defendant asserted that it could not be held
responsible for Remprex's actions because the BIPA did not impose liability for the acts
of a third party. The defendant stated that the BIPA does not impose vicarious liability
because the statute does not expressly define "private entity" to include agents or
contractors. Id. at *3. The court ruled that the language of the BIPA was broad enough
to reach the defendant here where it the hired third parties to collect data on its behalf.
Id. at *5. The court noted that the relevant text was that no private entity may "collect,
capture, purchase, receive through trade, or otherwise obtain" an individual's biometric
information without that person's written and informed consent. Id. Thus, the court
concluded that the defendant need not have “collected” the information to be held liable,
and that any liability could be included in the language “otherwise obtain.” Id. at *6.
Accordingly, in context, § 15(b) is triggered whenever a private entity acquires biometric
data in the enumerated ways — collecting, capturing, purchasing, receiving through
trade — or gets the biometric data in some other way. Id. at *7. Thus, the court opined
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Duane Morris Class Action Review – 2023
