18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 681 address the legislative history of the BIPA, because it concluded that it could answer the certified question “based on the relevant statutory language, which is ambiguous.” Id . at *14. The Appellate Court reasoned that the legislature did not intend for § 13-201 to include all privacy actions, for it “would have written something like ‘actions for slander, libel or privacy,’” or used “broad language rather than the narrower ‘for publication.’” Id . Accordingly, the Appellate Court found that the § 13-201 one-year statute of limitations governs only those actions brought under § § 15(c) and (d) of the BIPA, while a five-year statute of limitations pursuant to § 13-205 applies to § § 15(a), (b), and (e). Id . Vance, et al. v. Amazon.com, Inc., 2021 U.S. Dist. LEXIS 48433 (W.D. Wash. March 15, 2021). Plaintiffs, a group of Illinois residents who uploaded photos of themselves to a photo-sharing website, brought a putative class action alleging that Defendant violated the Illinois Biometric Information Privacy Act (“BIPA”). Specifically, Plaintiffs alleged that Defendant violated: (i) § 15(b) of the BIPA by collecting and obtaining biometric data without providing the requisite information or obtaining written releases; and (ii) § 15(c) of the statute by unlawfully profiting from individuals’ biometric data. Plaintiffs also brought an unjust enrichment claim and a separate count for injunctive relief. Defendants moved to dismiss pursuant to Rule 12(b)(6), and the Court granted the motion in part and denied it in part. In urging the Court to dismiss Plaintiffs’ two claims, Defendant asserted that the BIPA does not have extraterritorial effect outside of Illinois and that even if did, such an application of the BIPA in this case would violate the dormant commerce clause of the U.S. Constitution. Further, Defendant argued that Plaintiffs failed to state a claim under the BIPA. The Court declined to grant Defendant’s motion on the basis that that the BIPA was not intended to have exterritorial effect and thus did not apply because Plaintiffs had not established that the claim occurred in Illinois. The Court determined that at this early stage of the litigation, it could not dismiss the BIPA claims on this basis. Instead, the Court ruled that more discovery was needed to explore whether and to what extent Defendant’s alleged acts occurred in Illinois, and it concluded that Plaintiffs’ allegations were sufficient to withstand dismissal at this early juncture. Likewise, the Court rejected Defendant’s argument that applying the BIPA as Plaintiffs urged would violate the dormant commerce clause. The Court reasoned it needed more information about the technology behind how Defendant obtained, stored, or used the Diversity in Faces dataset in order to determine whether applying the BIPA would run afoul of the dormant commerce clause. The Court concluded that Plaintiffs had sufficiently alleged a violation of § 15(b) of the BIPA, which applies when a private entity collects, captures, purchases, trades for, or gets biometric data in some other way. Plaintiffs’ allegations that Defendant got the biometric data in some other way by applying for and downloading it from IBM and then used that data to improve its own products was sufficient to trigger application of § 15(b). As to Defendant’s claim that § 15(c) of the BIPA did not apply because Plaintiffs had not alleged that it had exchanged biometric data for a pecuniary benefit, the Court deferred ruling on this issue to allow supplemental briefing. Similarly, the Court deferred ruling on the unjust enrichment claim because supplemental briefing would be beneficial on this issue as well. Finally, the Court granted Defendant’s motion to dismiss Plaintiffs’ count for injunctive relief on the basis that injunctive relief was a remedy, and not a cause of action. The Court, however, noted that Plaintiffs could pursue injunctive relief in connection with their other claims. In sum, the Court granted in part and denied in part Defendant’s motion to dismiss. Vance, et al. v. Google, 2021 U.S. Dist. LEXIS 27546 (N.D. Cal. Feb. 12, 2021). Plaintiffs filed a class action alleging that Defendant violated various provisions of the Illinois Biometric Information Privacy Act (“BIPA”). Defendant filed a motion to stay all proceedings in the action until the resolution of Vance v. International Business Machines, Corp., Case No. 20-CV-577 (N.D. Ill. 2020) (“Microsoft action”), alleging the same claims Plaintiff had filed three other class actions under the BIPA, including one against Microsoft Corp. ("Microsoft action") in the Western District of Washington, a second one against FaceFirst, Inc. ("FaceFirst action") in the Central District of California, and this action. Defendant asserted that there was little risk of evidence being lost if a stay was granted because the "the vast majority of evidence relevant to Plaintiffs’ claims and Google’s defenses in this case is in the possession of IBM and Flicker/Yahoo!" and it will take reasonable steps to preserve any relevant evidence in its possession. Id . at *12. Plaintiffs contended that an indefinite stay would allow Defendant to continue using and profiting from biometric data in violation of the BIPA and that Google could prevent the degradation of testimonial evidence. The Court noted that the IBM action and this action shared many factual and legal issues, and that class certification had not yet been granted in this action. The Court thus concluded that Defendant submitted sufficient evidence to demonstrate that the harm to Plaintiff would not be significant. Additionally, the Court reasoned that Plaintiff was currently engaged in discovery in the