18th Annual Workplace Class Action Report - 2022 Edition

664 Annual Workplace Class Action Litigation Report: 2022 Edition BIPA claims because those claims implicated safe passenger transportation, which was the airline’s most critical service. The Court was unpersuaded by this argument. It concluded that Defendant’s attendance-tracking system had, at most, a remote effect on Defendant’s provision of safe air transportation. For that reason, the Court held that the ADA did not preempt Plaintiff’s remaining BIPA claims. For these reasons, the Court granted Defendant’s motion to dismiss in part and denied it in part. Avila, et al. v. JDD Investment Co., 2021 U.S. Dist. LEXIS 238078 (N.D. Ill. Dec. 13, 2021). Plaintiff, a former employee, filed a class action alleging that Defendant violated various provisions of the Illinois Biometric Information Privacy Act (“BIPA”) by collecting, storing, and disseminating her biometric data without informing her or obtaining her prior consent. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) or to stay the action. The Court denied the motion to dismiss, but stayed the action under Colorado River Water Conservation District v. United States , 424 U.S. 800 (1976), due to an earlier filed state court BIPA putative class action against Defendant. In support of its motion, Defendant argued that the Illinois Workers’ Compensation Act (“IWCA”) preempted Plaintiff’s BIPA claim, or if Court denied dismissal, it should stay the action pending the Illinois Supreme Court’s decision in McDonald v. Symphony Bronzeville Park, LLC , which raised the same question of IWCA preemption. The Court rejected the defense argument. It found that Plaintiff alleged that Defendant intentionally collected her fingerprints using a biometric timekeeping system, and thus the injury was not accidental and did not trigger preemption. Defendant also sought dismissal on Plaintiff’s claims being time- barred, or in the alternative, sought to stay pending two Illinois Appellate Court decisions and a Seventh Circuit interlocutory appeal – Tims v. Black Horse Carriers, Inc. , Marion v. Ring Container Techs. , and In Re White Castle System, Inc. , all which could decide the timeliness of Plaintiff’s BIPA claim. Id . at *12. The Court, however, determined that Plaintiff’s claim here would fall under the five-year catch-all statute of limitations for Illinois claims, and thus the rulings in these cases would not be dispositive. The Court opined that Plaintiff adequately alleged that Defendant enrolled her in a biometric timekeeping system that collected her fingerprints without meeting the notice and consent requirements outlined in § 15(b) of the BIPA, which was sufficient to survive dismissal. Finally, Defendant argued that abstention under the Colorado River doctrine applied, as there was a state court proceeding against Defendant, McDonald’s Corp., and several other McDonald’s franchises (entitled Arthur v. JDD Inv. Co. , Case No. 2020-L-0891). The Court determined although the parties involved were not identical, precise symmetry was not necessary, and Plaintiff and the named Plaintiffs in Arthur shared similar litigation interests. Further, the Court noted that both cases involve similar issues, i.e. , that Defendants collected and stored their employees’ biometric information without complying with the BIPA’s notice and consent requirements. The Court thus found the cases to be parallel for consideration of the Colorado River ten factor test. The Court reasoned that some of the factors were neutral, and weighed in favor of abstention. The Court observed that allowing the two suits to proceed concurrently would risk duplicative rulings and potentially waste judicial resources on the BIPA claim. Id . at *18. Also weighing in favor of abstention was the fact that Arthur was filed five months before this case, because the BIPA involves Illinois state law, not federal law, and because a BIPA claim can be brought in state court. Id . at *19. The Court concluded that because seven of the 10 factors under Colorado River weighed in favor of abstention, it would be appropriate to abstain from deciding Plaintiff’s BIPA claim. Finally, the Court reasoned that the Seventh Circuit had held that "a stay, not a dismissal, is the appropriate procedural mechanism . . . to employ in deferring to a parallel state court proceeding under the Colorado River doctrine." Id . at *20. For these reasons, the Court stayed Plaintiff’s BIPA claim. Barton, et al. v. Swan Surfaces, LLC, 2021 U.S. Dist. LEXIS 38464 (S.D. Ill. March 2, 2021). Plaintiff, an employee, filed a class action alleging that Defendant violated several provisions of the Illinois Biometric Information Privacy Act (“BIPA”) by: (i) failing to institute, maintain, and adhere to publicly available retention schedule; and (ii) failing to obtain informed written consent and release before obtaining biometric identifiers of information. Defendant filed a motion to dismiss on the basis that Plaintiff’s claims were preempted by § 301 of the Labor-Management Relations Act (“LMRA”) because she was a union employee subject to a collective bargaining agreement (“CBA”). The Court noted that preemption encompassed "claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement.” Id . at *8. The Court explained that the Seventh Circuit’s decision in Miller v. Southwest Airlines, Inc. , 926 F.3d 898 (7th Cir. 2019), controlled here. In Miller , the Seventh Circuit determined that claims under the BIPA were preempted when they required interpretation of a CBA. The Court also noted several other case law authorities in Illinois which had ruled on § 301 preemption relative to claims under the