18th Annual Workplace Class Action Report - 2022 Edition

682 Annual Workplace Class Action Litigation Report: 2022 Edition IBM action and Defendant was on notice of the need to preserve any additional evidence it may have. The Court determined that not granting a stay would unduly burden Defendant, as the many overlapping legal issues raised significant constitutional questions, increasing the risk of inconsistent rulings and confusion. The Court held that the factual issues to be resolved in both cases were similar and predicated on the issues in the IBM action, as Plaintiff must first establish that IBM wrongfully acquired and used Plaintiff’s biometric information in violation of the BIPA. Id . at *13-14. The Court thus found that a one-year stay was warranted pending the resolution of the IBM case. Vance, et al. v. International Business Machines Corp., Case No. 20-CV-577 (N.D. Ill. Aug. 31, 2021). Plaintiffs filed a class action alleging that Defendant violated the Illinois Biometric Information Privacy Act (“BIPA”) by collecting and using their facial scans in a dataset disclosed to researchers. Id . at 1. Defendant filed a partial motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6). The Court granted the motion. First, Defendant argued that counts IV and V of Plaintiffs’ complaint provided the same allegations as count III, i.e ., that Defendant violated § 15(d) of the BIPA by disclosing biometric information. The Court explained that Rule 8(d)(2) allowed Plaintiffs to assert alternate pleading theories. However, in this instance, the Court reasoned that the claims were functionally identical, such that if Plaintiffs were to recover on courts IV and V, they would also be successful on count III. Accordingly, the Court dismissed counts IV and V as duplicative. For these reasons, the Court granted Defendant’s partial motion to dismiss. Vance, et al. v. Microsoft Corp. , 2021 U.S. Dist. LEXIS 48350 (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) 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 BIPA claims, Defendant asserted that the BIPA did 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, it could not dismiss the BIPA claims on this basis. Instead, the Court found 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. At this point, the Court determined it needed more information about the technology behind how Defendant obtained, stored, or used its dataset in order to determine whether applying the BIPA would run afoul of the dormant commerce clause. In addition, the Court concluded that Plaintiffs had sufficiently alleged a violation of § 15(b), which applied when a private entity collected, captured, purchased, traded for, or obtained biometric data in some other way. Therefore, the Court reasoned that 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 state a claim under § 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 novel 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. Lastly, the Court granted Defendant’s motion to dismiss Plaintiffs’ count for injunctive relief. It found that injunctive relief was a remedy, not a cause of action. The Court noted, however, that Plaintiffs could pursue injunctive relief in connection with its other claims. For these reasons, the Court granted in part and denied in part Defendant’s motion to dismiss. Wilcosky, et al. v. Amazon.com, Inc., 2021 U.S. Dist. LEXIS 22274 (N.D. Ill. Feb. 5, 2021). Plaintiffs brought a putative state court class action asserting that Defendant’s Alexa device, a digital assistant, had recorded and stored their voiceprints without their consent in violation of the Illinois Biometric Information Privacy Act (“BIPA”). Plaintiffs alleged that Defendants violated § 15(a) of the BIPA by failing to maintain a publicly available “retention