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Strategies for Defending Illinois Biometric Privacy Class Action Lawsuits

OACTA Quarterly Review

Over the last two years, companies utilizing biometric data in their operations have faced a relentless wave of class action lawsuits for purported violations of the Illinois Biometric Information Privacy Act (“BIPA”). 2019 was an especially 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 $650 million to settle a longstanding BIPA dispute over the use of facial recognition technology to support its photo “tagging” feature. However, 2020 has been a different story for defendants in BIPA class actions, who have seen a sizable shift in momentum with courts issuing a number of favorable decisions on key issues and defenses. Several recent BIPA opinions demonstrate how some of these defenses—namely preemption, arbitration, and personal jurisdiction—can be utilized by corporate defendants to halt such claims in their tracks or, at a minimum, significantly limit the amount of damages involved in this type of litigation.

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“Strategies for Defending Illinois Biometric Privacy Class Action Lawsuits,” by David J. Oberly was published in the Autumn 2020 edition of the OACTA Quarterly Review (Vol. 15, No. 3), a publication of the Ohio Association of Civil Trial Attorneys (“OACTA”). Reprinted with permission.