18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 683 schedule or guidelines for permanently destroying” Plaintiffs’ biometrics as required by the BIPA, as well as § 15(b) of the BIPA by failing to properly inform Plaintiffs in writing that their voiceprints were being collected and stored and by failing to obtain Plaintiffs’ written release prior to any such collection, use, or storage. Defendant removed the matter pursuant to the Class Action Fairness Act (“CAFA”). Plaintiffs requested that the Court remand their claims. Defendants argued that Article III standing was satisfied, and moved to compel arbitration pursuant to the parties’ agreement. Plaintiffs argued that the lawsuit should be remanded because the complaint did not allege an injury-in-fact under § 15(a), and therefore all claims should be remanded for purposes of efficiency and consistency. On the other hand, Defendants contended that Plaintiffs had alleged an injury-in-fact sufficient to establish standing under Article III over both their § § 15(a) and 15(b) claims. The Court agreed with Defendants. It found that both BIPA violations alleged in the complaint rose to the level of a concrete and particularized injury for purposes of Article III standing. As such, because Plaintiffs had adequately alleged injuries-in-fact for all of their BIPA claims such that there was Article III standing, the Court determined that it had subject- matter jurisdiction over the claims. Accordingly, the Court denied Plaintiffs’ motion to remand. As to Defendant’s motion to compel arbitration, the Court granted in part and denied in part Defendants’ motion. The Court agreed that Plaintiffs Wilcosky and Gunderson’s claims were subject to arbitration and it granted Defendants’ motion to compel arbitration as to those two Plaintiffs. However, the Court denied the motion to compel arbitration without prejudice as to E.G., a minor who was a non-signatory to the agreement. The Court noted that the parties disputed whether Illinois or Washington law applied to an analysis of Defendant’s argument that E.G. was bound by the principle of equitable estoppel to arbitrate her claims. Because the parties had not addressed the equitable estoppel argument under Illinois law, the Court denied the motion to compel as to Plaintiff E.G. without prejudice and ordered supplemental briefing on the issue. In sum, the Court granted in part and denied in part Defendants’ motion to compel arbitration. Wordlaw, et al. v. Enterprise Leasing Co. Of Chicago, LLC , Case No. 20-CV-3200 (N.D. Ill. Jan. 27, 2021). Plaintiff, a former employee, filed a class action alleging that Defendants’ use of a biometric timekeeping system violated the Illinois Biometric Information Protection Act (“BIPA”) by collecting, retaining, and disseminating her fingerprints. The Court previously had denied Defendants’ motion to dismiss under Rule 12(b)(6) on the basis that Plaintiff stated a viable BIPA claim against both Defendants. Defendants subsequently moved to reconsider under Rule 54(b), or alternatively, to certify certain questions for interlocutory appeal under 28 U.S.C. § 1292(b). The Court denied the motion. The Court found that Defendants failed to identify any facts or controlling precedent that it had ignored or misapplied. Id . at 2. Defendants asserted that the Court improperly credited Plaintiff’s allegations that Defendant Enterprise Holdings controlled her work environment. The Court, however, opined that Plaintiff’s allegation of Enterprise Holdings’ control over employee timekeeping and privacy described a relevant factual aspect of her personal experience working for Defendants, which raised a reasonable inference that Enterprise Holdings administered the alleged fingerprint-scanning system, and in turn, plausibly suggested that Enterprise Holdings collected, retained, and disseminated her fingerprints. Id . at 3. Further, the Court reasoned that Plaintiff alleged that Enterprise Holdings violated the BIPA via its control over the fingerprint-timekeeping system, and therefore it was reasonable to infer that it was collecting Plaintiff’s fingerprints daily without her consent. The Court therefore found that Plaintiff sufficiently stated a claim against both Defendants, and denied the motion for reconsideration. As to the motion for interlocutory appeal, the Court determined that three of the questions involved alternative theories of liability, which would not materially advance the ultimate termination of the litigation, and therefore were unsuitable for interlocutory appeal. The final question for which Defendants sought to appeal related to the sufficiency of the complaint’s factual allegations under Rule 8, which the Court held was a routine legal question and therefore not the kind that would merit interlocutory appeal. Accordingly, the Court denied Defendants’ motion. (lxi) Procedural Issues And Proof Requirements In Rule 23 Class Actions Ball, et al. v. Dewine, 2021 U.S. App. LEXIS 183757 (6th Cir. June 30, 2021). Plaintiffs, a group of individuals with developmental or mental disabilities, filed class actions alleging that Defendants’ administration, management, and funding of Ohio’s service system for people have left thousands of such individuals unnecessarily institutionalized or at serious risk of institutionalization in violation of federal law. Id . at *2. Defendants included the Governor of Ohio and the Directors of the Ohio Department of Developmental Disabilities ("DODD") and the Ohio Department of Medicaid, and Opportunities for Ohioans with Disabilities. Subsequently, the District Court granted a motion to intervene by the Ohio Association of County Boards of