Designing a BIPA Defense: Using Arbitration Agreements and Class Action Waivers to Limit BIPA Liability
This is the second article in a three-part series on Designing a BIPA Defense. To read the full series, please view the first article and the final article.
Over the last 18 months or so, companies that utilize fingerprint scanners and other biometric technologies have faced a relentless wave of class action litigation filed in connection with purported violations of Illinois’ Biometric Information Privacy Act (“BIPA”).
2019 was a rough year for BIPA defendants, as courts issued a string of plaintiff favorable decisions that greatly expanded the scope of potential BIPA liability, while limiting many of the major defenses. As just one example, after several significant setbacks, Facebook agreed to pay $550 million to settle a longstanding BIPA dispute over allegations the social media giant improperly used facial recognition technology to support its photo “tagging” feature.
In 2020, however, the tide may have started to turn – at least for now – in favor of BIPA defendants. One of the more significant decisions is Miracle-Pond v. Shutterfly, Inc., in which a federal court held a plaintiff was required to pursue her BIPA claims in individual arbitration, despite the fact the arbitration provision was not added to the company’s Terms of Use until a year after the plaintiff originally agreed to them. The Shutterfly decision is a significant win for BIPA defendants and demonstrates how arbitration agreements and class action waivers can be utilized as a key strategy for mitigating BIPA liability.
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“Designing a BIPA Defense: Using Arbitration Agreements and Class Action Waivers to Limit BIPA Liability,” by Jeffrey N. Rosenthal and David J. Oberly was published in the January 2021 edition of Pratt’s Privacy & Cybersecurity Law Report (Vol. 7, No. 1), an A.S. Pratt Publication, LexisNexis. Reprinted with permission.