The Privacy Class Action Review - 2023 - Report - Page 32
trade – or gets the biometric data in some other way. Id. at *7. Thus, the court opined
that there was sufficient evidence that the defendant contracted with Remprex to collect
biometric data on the defendant’s behalf for the purpose of regulating entry into the
railyard. Further, the defendant argued that it could only be liable under the BIPA once it
completed the act of collecting, capturing, purchasing, receiving through trade, or
otherwise obtaining the plaintiff's biometric data, and that taking an "active step" toward
doing so was not sufficient to violate § 15(b). Id. at *8. The court found that a
reasonable finding could be made that the defendant took an “active step” by hiring
Remprex to collect biometric data on its behalf. Id. at *9. For these reasons, the court
denied the defendant’s motion in limine.
In Sambolin, et al. v. Ethos Veterinary Health, LLC, 2022 U.S. Dist. LEXIS 184848 (N.D.
Ill. Oct. 6, 2022), the plaintiff filed a class action alleging that the defendant’s use of a
Cubex device, which requires users to scan a fingerprint to access an automated
medication dispensing system, violated the BIPA. After answering the complaint, the
defendant moved to stay the case. Id. at *2. The court denied the motion to stay. The
defendant argued that two cases pending in the Illinois Supreme Court would
significantly impact this case, including Tims, et al. v. Black Horse Carriers, Inc. and
Cothron, et al. v. White Castle System, Inc. First, the court held that the Illinois appellate
court’s decision in Tims appeared well-reasoned and there was no persuasive indication
that the Illinois Supreme Court will reverse the opinion. Id. at *4. Second, the court held
that the lawsuit will proceed regardless of how the Illinois Supreme Court decides the
issue of claim accrual in Cothron and, therefore, it held that discovery could proceed.
Accordingly, the court denied the defendant’s motion to stay. Id. at *6.
In Woods, et al. v. Fleetpride, Inc., 2022 U.S. Dist. LEXIS 54763 (N.D. Ill. Mar. 27,
2022), the plaintiff filed a class action alleging that the defendant violated the BIPA by
using a clock-in, clock-out timekeeping system that relied on the collection, storage, and
use of employees' fingerprints and biometric information without proper written consent
and without making required disclosures. The defendant removed the litigation under
the Class Action Fairness Act. The plaintiff filed a motion to sever and remand the §
15(a) claims to state court for lack of subject-matter jurisdiction. The court granted the
motion to sever and remand. Id. at *2. The court opined that the heart of the
jurisdictional dispute is over the nature and concreteness of injuries for the alleged
violation of § 15(a). Id. at *9. The court held that the § 15(a) claim hinged only on the
failure to publish a retention and destruction policy, which did not qualify as the type of
injury-in-fact needed for Article III standing. Id. at *15. Accordingly, the court held that it
did not have subject-matter jurisdiction over the § 15(a) claim retention-policy claims
and granted the plaintiff’s motion to sever and partially remand. Id.
In Wise, et al. v. Ring, 2022 U.S. Dist. LEXIS 138399 (W.D. Wash. Aug. 3, 2022), the
plaintiff filed a class action alleging that the defendant, a developer of video doorbells,
violated the BIPA by collecting, storing, and using the plaintiff’s and other similarlysituated individuals’ biometric identifiers and biometric information without informed
written consent. Id. at *2. The defendant moved to dismiss the first amended complaint
on the grounds that the plaintiff failed to state a claim under the BIPA because she did
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Duane Morris Privacy Class Action Review – 2023
