Second, the landscape of privacy litigation remains very much in flux. In these classactions to date, the plaintiffs’ bar primarily has alleged on behalf of employees and/orconsumers that companies improperly collected their biometric data for a host offunctions, such as to enhance their timekeeping systems, to promote their security, toincrease employee productivity, to enhance their sales, or to facilitate consumertransactions.In response to these lawsuits, employers have mounted a litany of defenses, some ofwhich remain untested or unsettled. Some of these defenses surround: (i) the accrual ofthe statute of limitations for purposes of starting the clock; (ii) whether each allegedlyunlawful scan or collection of data constitutes a discrete violation; (iii) whether biometricdata was actually collected, used, or stored; (iv) whether exemptions related to healthcare providers apply; and (v) whether and to what extent alleged violations occurred inIllinois for purposes of satisfying extraterritoriality limitations. Courts are starting toconsider these defenses, contributing to a patch-work quilt of rulings in 2022 that arelikely to prompt additional litigation and uncertainty.The plaintiffs’ bar is also bringing novel BIPA class actions under evolving casetheories, including lawsuits alleging surveillance claims, voiceprint claims, and privacy17© Duane Morris LLP 2023Duane Morris Privacy Class Action Review – 2023
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