18th Annual Workplace Class Action Report - 2022 Edition

680 Annual Workplace Class Action Litigation Report: 2022 Edition Thornley, et al. v. Clearview AI, 2020 U.S. App. LEXIS 1006 (7th Cir. Jan. 14, 2021). Plaintiffs brought a putative class action pursuant to Illinois’s Biometric Information Privacy Act, (“BIPA”) in state court on behalf of all Illinois citizens whose biometric identifiers or biometric information were included in the Defendant’s database without their knowledge. Defendant used a proprietary algorithm to "scrape" publicly available pictures from social media sites such as Facebook, Twitter, Instagram, LinkedIn, and Venmo. Id. at *3. Defendant’s software harvested from each scraped photograph the biometric facial scan and associated metadata and that information was then put into its database that contains billions of entries. Defendant offered access to this database to its clients who wished to find out more about someone in a photograph. After Defendant removed the matter to the District Court, Plaintiffs voluntarily dismissed the action. Plaintiffs then filed a new, significantly narrowed action against Defendant in state court alleging only a violation of § 15(c) of the BIPA. Section 15(c) of BIPA provides that no private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information. Defendant, for its part, again removed the case for a second time. Plaintiffs filed a motion to remand, in which they asserted that the violation of § 15(c) was only a "bare procedural violation, divorced from any concrete harm, pursuant to Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1549 (2016), and thus did not support the more stringent requirements of Article III standing for a federal action. The District Court agreed with Plaintiffs and remanded the suit. On Defendant’s appeal arguing that Plaintiffs did in fact have Article III standing, the Seventh Circuit affirmed the District Court’s order remanding the matter to state court. Plaintiffs’ new complaint conceded that the putative class suffered no injury from Defendant’s violation of § 15(c) of the BIPA other than statutory aggrievement. For this reason, the Seventh Circuit held that the District Court correctly decided that Plaintiffs did not present a case within the boundaries set by Article III, and therefore it concluded that the District Court properly remanded the case to the state court. Noting that Plaintiff is the master of her own complaint, the Seventh Circuit determined that the District Court properly held that the particular allegations before it raised questions only about a general regulatory rule found in the BIPA, i.e. , that no one may profit in the specified ways from another person’s biometric identifiers or information. As such, the Seventh Circuit affirmed the District Court’s ruling. Tims, et al. v. Black Horse Carriers Inc., 2021 Ill. App. LEXIS 506 (Ill. App. 1st Dist. Sept. 17, 2021). Plaintiff filed a class action claiming that Defendant’s timekeeping practices, which involved the scanning and storing of employees’ fingerprints, violated the Illinois Biometric Protection Act (“BIPA”). Plaintiff brought claims pursuant to § 15(a) of the BIPA for failing to institute, maintain, and adhere to a retention schedule for biometric data, and pursuant to § § 15(b) and (d), respectively, for obtaining employees’ biometric data and disclosing it to third- parties without first obtaining their written, informed consent. In June 2019, Defendant filed a motion to dismiss on the ground that Plaintiff filed the complaint outside of the applicable statute of limitations period. Defendant argued that the one-year limitations period prescribed by 735 ILCS 5/13-201 applied to Plaintiff’s claims because the BIPA’s main concern is privacy protection. Plaintiff countered that the five-year catch-all limitations period prescribed by 735 ILCS 5/13-205 covered Plaintiff’s claims because a “publication element” was required for a claim to be covered by § 13-205, an element which, according to Plaintiff, the BIPA clearly lacked. The trial court denied Defendant’s motion to dismiss. It held that § 13-201 did not apply because Plaintiff alleged a violation of the Act itself, rather than a general violation of privacy. As such, the trial court opined that a five-year limitations period applied to Plaintiff’s claims. The trial court did not address the issue of when Plaintiff’s claims accrued – upon Plaintiff’s first finger scan vs. Plaintiff’s last finger scan – because the complaint was timely filed under either scenario. On appeal, the Illinois Appellate Court affirmed in part and reversed in part. First, the Appellate Court noted the “sole concern” in determining which limitations period applied was the intent of the legislature. Id . at *7. Given the BIPA’s silence on the issue, the Appellate Court turned to the language of § 13- 201, which establishes a one-year limitation period for “[a]ctions for slander, libel, or for publication of matter violating the right of privacy.” Id . The Appellate Court explained that Illinois trial courts have recognized two types of privacy interests in the right to privacy – secrecy and seclusion – and held that § 13-201 applies only to those claims premised on the right to secrecy, such as false-light publicity and the appropriation of the name or likeness of another. The Appellate Court also noted the language of § 13-205, which “provides for a five-year limitation period for, in relevant part, ‘all civil actions not otherwise provided for.’” Id . at *9. In addition, the Appellate Court highlighted the various “duties” enforced by the BIPA. Applying these principles to the question at issue, the Appellate Court concluded that the § 13-201 one-year limitations period covers only privacy actions in which publication is an element or an “inherent part of the action.” Id . at *13. The Appellate Court did not