Legal landmines continue to lurk for companies that collect, store, and use individuals’ biometric information. Class action cases continue to be filed against companies under the Illinois Biometric Information Privacy Act (BIPA). BIPA carries with it the potential for actual damages or statutory liquidated damages of $1,000 for each negligent violation and $5,000 for each reckless or intentional violation, plus attorneys’ fees and costs, and injunctive relief.
A wave of BIPA class action complaints have been brought against companies in recent years, and 2021 was no exception. Further, in 2021, plaintiffs’ attorneys expanded the types of BIPA cases they are bringing beyond just claims involving the use of alleged biometric time clocks. Cases involving all sorts of alleged biometric technology, including multiple cases involving consumers instead of (or in addition to) employees, have been filed. What constitutes a “violation” of the BIPA has not yet been settled by the courts, and it is expected to be a hotly contested issue.
State and federal courts issued several important BIPA decisions in 2021:
Standing. In a January decision, the Seventh Circuit ruled a federal court lacked standing to consider a class action BIPA case where the plaintiffs (in a deliberate strategy to keep their case in state court) did not allege they suffered concrete harm as a result of the alleged violation of the statute. The initial complaint alleged violations of three provisions of the...
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