Big Questions for BIPA Case Law in 2021
Over 750 class actions alleging violations of Illinois’s Biometric Information Privacy Act (BIPA) have poured into federal and state courts. The docket continues to grow – plaintiffs filed another 55 BIPA lawsuits in January 2021, according to Ankura Consulting Group.
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Arbitration and Preemption
Defendants have been enthused that the U.S. District Court for the Northern District of Illinois (NDIL) has issued a trio of decisions in 2020 and 2021 sending BIPA claims to arbitration. These included both workplace and consumer-technology class actions.
The most recent decision benefitted Amazon. Users of Alexa devices accused the company of collecting their voiceprints without consent and on Feb. 5, 2021, a judge in the NDIL granted Amazon’s motion and ordered the adult class of plaintiffs to take their claims individually to arbitration, as Amazon’s terms of use stipulated. The judge concluded that even if the named plaintiff did not have constructive notice of Amazon’s terms through its music app or via Alexa, he had it through purchases on Amazon.com. (The judge is continuing to hear arguments for the class of minors.)
Another NDIL judge in May 2020 compelled arbitration stopping Shutterfly users’ classwide claims alleging illegal facial recognition practices.
In another case in the NDIL, the judge sent the employee plaintiffs in a putative class action, Crooms v. Southwest Airlines, to arbitration in May 2020, and dismissed their case, noted Blank Rome partner Jeffrey Rosenthal.
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"Big Questions for BIPA Case Law in 2021," by Matt Fleischer-Black was published in the Cybersecurity Law Report on February17, 2021.