I.A.Overview Of Privacy Class Action Litigation In 2022Illinois BIPA ClaimsEnacted in 2008, the Illinois Biometric Information Privacy Act, 740 ILCS 14/15 (BIPA)regulates the collection, use, and handling of biometric identifiers and information byprivate entities. Subject to limited exceptions, the BIPA generally prohibits the collectionor 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, andcompanies’ continued development and use of innovative technologies are apt toprovide a veritable barrel of opportunity.Over the last five years, class action lawsuits brought under the BIPA have surged. In2022, the plaintiffs’ class action bar continued to focus on employers, businesses andvendors utilizing biometric technology, as approximately 357 BIPA class action lawsuitswere filed in Illinois.The most noteworthy BIPA case from2022 was Rogers, et al. v. BNSFRailway Co., Case No. 19-CV-3083(N.D. Ill.), the first federal jury trial in acase brought under the BIPA. After aweek-long trial in the U.S. District Courtfor the Northern District of Illinois, a juryfound that the BNSF recklessly orintentionally violated the law 45,600times and entered a verdict in favor ofthe class of 45,000 workers. The courtthereafter awarded damages againstthe BNSF of $228 million. The BNSFsubsequently filed a motion for a new trial arguing that none of the 45,000 classmembers 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 in2023.Two rulings of the Illinois Supreme Court from February 2023 will have a profoundimpact on the BIPA class action landscape. On February 2, 2023, the Illinois SupremeCourt clarified the scope of the statute of limitations applicable to the BIPA in Tims, etal. v. Black Horse Carriers, Case No. 127801 (Ill. Feb. 2, 2023). The Illinois SupremeCourt held that a five-year statute of limitations applies to claims under the BIPA. Thisruling adds to the risks for employers and companies who do business in Illinois interms of BIPA class action exposures. Given that the BIPA statute does not have anexplicit statute of limitations, the Illinois Supreme Court’s ruling now provides clarity for10© Duane Morris LLP 2023Duane Morris Privacy Class Action Review – 2023
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