18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 667 (i) have a publicly available data retention policy disclosing what it did with voiceprint biometric data it obtains or how long it is stored for; (ii) have a policy regarding its retention or deletion of the data; (iii) provide a publically available retention schedule; and (iv) allow class members to obtain their statutorily required information. Id . at 5-6. The Court ruled that Plaintiff did not allege that Defendant actually violated any provision of § 15(a), but only that Defendant failed to disclose the information. The Court held Plaintiff therefore lacked Article III standing to bring the § 15(a) claim because the complaint only alleged a violation of the public disclosure provision. Plaintiff’s § 15(c) claim asserted that “Defendant profited from Plaintiff’s biometrics.” Id . at 8. The Court determined that Plaintiff’s claim alleged only a general regulatory violation and nothing close to the personal, individual harm required to confer Article III standing. Id . at 9. Accordingly, the Court granted Plaintiff’s motion to remand. Cothron, et al. v. White Castle System , Case No. 20-3202 (7th Cir. Dec. 20, 2021). Plaintiff, a restaurant employee, filed a class action alleging that Defendant’s use of fingerprint scanners to access paystubs violated the Illinois Biometric Information Protection Act (“BIPA”). Plaintiff asserted that Defendant failed to provide a written release from Plaintiff to send fingerprint information to third-parties, and failed to inform Plaintiff of its retention policies with regard to biometric information. The District Court previously had denied Defendant’s motion for judgement on the pleadings on the grounds that Plaintiff’s claims were time-barred under the BIPA. Plaintiff alleged that since Defendant did not obtain her consent until 2018, 10 years after the BIPA took effect, it therefore unlawfully collected her fingerprints and unlawfully disclosed them to its third-party vendor in violation of § § 15(b) and 15(d) of the statute. Defendant maintained that Plaintiff filed suit after the statute of limitations because her claim accrued in 2008 with her first fingerprint scan after the BIPA’s effective date. Plaintiff countered that a new claim accrued each time she scanned her fingerprint and Defendant sent it to the third- party authenticator, not just the first time there was a scan, and thus her suit was timely filed with respect to the unlawful scans and transmissions that occurred within the limitations period. Id . at 4. Because the decision involved a controlling question of law on which there was substantial ground for disagreement, the District Court certified the order for immediate appeal pursuant to § 1292(b), and the Seventh Circuit accepted the appeal. Plaintiff thereafter requested that the Seventh Circuit certify the question to the Illinois Supreme Court. The Seventh Circuit agreed that the question should be addressed by the Illinois Supreme Court. The Seventh Circuit explained that Illinois Supreme Court accepts certified questions from the Seventh Circuit when none of its precedents control and the answer to the certified question would determine the outcome of the case. Id . at 16. The Seventh Circuit reasoned that the threshold requirements are met here, as the Illinois Supreme Court has not yet decided whether § § 15(b) and 15(d) claims accrue repeatedly. Further, the Seventh Circuit opined that there were reasons to think that the Illinois Supreme Court might side with either party here. The Seventh Circuit also found that the dispositive legal question was likely to repeat rather than be unique and fact bound. Finally, the Seventh Circuit noted that the BIPA was an Illinois statute regularly applied by the federal courts, and a law that the Illinois Supreme Court has shown an interest in interpreting. Id . at 18. Accordingly, the Seventh Circuit concluded that all the relevant criteria favored certification. The Seventh Circuit thereby requested that the Illinois Supreme Court answer the certified question of whether § § 15(b) and 15(d) claims accrued each time a private entity scanned a person’s biometric identifier and each time a private entity transmitted such a scan to a third-party, respectively, or only upon the first scan and first transmission. Id. at 19. Fernandez, et al. v. Kerry, Inc., 2021 U.S. App. LEXIS 28400 (7th Cir. Sept. 20, 2021). Plaintiffs, a group of former employees, filed a class action alleging that Defendant’s use of fingerprint scanners which collected their biometric information without obtaining their consent violated the Illinois Biometric Information Privacy Act (“BIPA”). Defendant filed a motion to dismiss on the grounds that Plaintiffs’ claims were preempted by § 301 of the Labor-Management Relations Act (“LMRA”) because resolution would require interpretation of collective bargaining agreements between the parties. The District Court granted the motion. On appeal, the Seventh Circuit affirmed the District Court’s ruling. The Seventh Circuit ruled that under binding precedent the dispute was preempted by the LMRA because it required interpretation of the parties’ collective bargaining agreements. The Seventh Circuit reasoned that “if labor and management want to bargain collectively about particular working conditions, they are free to do so." Id . at *2. The Seventh Circuit determined that employees could not thereafter insist that managers bypass the union and not look to the collectively bargaining agreements. The Seventh Circuit opined that if an employer asserts that a union has consented to collection of biometric information, then any dispute about the accuracy of that contention would one about the meaning of a collective