The Privacy Class Action Review - 2023 - Report - Page 11
I.
A.
Overview Of Privacy Class Action Litigation In 2022
Illinois BIPA Claims
Enacted in 2008, the Illinois Biometric Information Privacy Act, 740 ILCS 14/15 (BIPA)
regulates the collection, use, and handling of biometric identifiers and information by
private entities. Subject to limited exceptions, the BIPA generally prohibits the collection
or use of an individual’s biometric identifiers and biometric information without notice,
written consent, and a publicly-available retention and destruction schedule.
The BIPA’s technical requirements, combined with stiff statutory penalties and feeshifting, provide a recipe for attention from the plaintiff’s class action bar, and
companies’ continued development and use of innovative technologies are apt to
provide a veritable barrel of opportunity.
Over the last five years, class action lawsuits brought under the BIPA have surged. In
2022, the plaintiffs’ class action bar continued to focus on employers, businesses and
vendors utilizing biometric technology, as approximately 357 BIPA class action lawsuits
were filed in Illinois.
The most noteworthy BIPA case from
2022 was Rogers, et al. v. BNSF
Railway Co., Case No. 19-CV-3083
(N.D. Ill.), the first federal jury trial in a
case brought under the BIPA. After a
week-long trial in the U.S. District Court
for the Northern District of Illinois, a jury
found that the BNSF recklessly or
intentionally violated the law 45,600
times and entered a verdict in favor of
the class of 45,000 workers. The court
thereafter awarded damages against
the BNSF of $228 million. The BNSF
subsequently filed a motion for a new trial arguing that none of the 45,000 class
members suffered any actual harm and raising constitutional concerns about the BIPA.
That motion remains pending for decision, and is almost sure to result in an appeal in
2023.
Two rulings of the Illinois Supreme Court from February 2023 will have a profound
impact on the BIPA class action landscape. On February 2, 2023, the Illinois Supreme
Court clarified the scope of the statute of limitations applicable to the BIPA in Tims, et
al. v. Black Horse Carriers, Case No. 127801 (Ill. Feb. 2, 2023). The Illinois Supreme
Court held that a five-year statute of limitations applies to claims under the BIPA. This
ruling adds to the risks for employers and companies who do business in Illinois in
terms of BIPA class action exposures. Given that the BIPA statute does not have an
explicit statute of limitations, the Illinois Supreme Court’s ruling now provides clarity for
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© Duane Morris LLP 2023
Duane Morris Privacy Class Action Review – 2023
