Designing a BIPA Defense: Using Preemption and Arbitration to Defeat Biometric Class Actions
This is the first article in a three-part series on Designing a BIPA Defense. To read the full series, please view the second article and final article.
Since the Illinois Supreme Court issued its seminal decision in Rosenbach v. Six Flags Entertainment Corp. in the beginning of 2019, companies using fingerprint scanners and other biometric technologies have faced a relentless deluge of class actions for purported violations of the Illinois Biometric Information Privacy Act (“BIPA”).
BIPA
BIPA has quickly become the next class action battleground – primarily due to the statute’s private right of action, which permits the recovery of statutory damages between $1,000 and $5,000 per violation, along with attorney’s fees. Since Rosenbach, most BIPA decisions have been extremely plaintiff-friendly, including the U.S. Court of Appeals for the Ninth Circuit’s opinion in Patel v. Facebook, Inc. – which, like Rosenbach, held that any BIPA violation is sufficient to constitute a sufficient injury-in-fact for Article III standing.
More recently, however, the tide may have started to turn in favor of defendants – with courts issuing favorable decisions in 2020 on several key BIPA issues and defenses.
One of those cases is Crooms v. Southwest Airlines Co., in which the court held four plaintiffs were required to pursue their BIPA claims against their employer before an adjustment board or in arbitration – not in federal court. This resulted in the dismissal of the entire action. Crooms serves to highlight the continued favorable treatment of preemption/arbitration defenses, and exemplifies how they can be deployed in BIPA actions.
To read the full article, please click here.
“Designing a BIPA Defense: Using Preemption and Arbitration to Defeat Biometric Class Actions,” by Jeffrey N. Rosenthal and David J. Oberly was published in the November‒December 2020 edition of Pratt’s Privacy & Cybersecurity Law Report (Vol. 6, No. 9), an A.S. Pratt Publication, LexisNexis. Reprinted with permission.