BIPA Amendment Making Waves in Litigation Trends
The landscape of biometric privacy in Illinois is poised for a significant shift following the recent amendment to the Illinois Biometric Information Privacy Act (BIPA). On August 4, 2024, Governor JB Pritzker signed S.B. 2979 into law introducing a crucial modification that could have far-reaching implications for businesses and the ongoing wave of biometric privacy litigation.
Understanding BIPA: A Background
Lawmakers Amend BIPA
When a class action lawsuit against the fast food chain White Castle teed up what could have been a $17 billion dollar verdict the Illinois Supreme Court decided to “respectfully suggest” that the state legislature revisit and clarify certain provisions of the Biometric Information Privacy Act (BIPA) of 2008.
That act, as originally written, held that employers who did not obtain employees’ permission when using their fingerprints or other biometric information like face scans in the course of their jobs—or who overlooked the same step if collecting similar information from customers—would be on the hook for $1,000 per “negligent” violation or $5,000 per “reckless” or “intentional” violation. For example, if a fingerprint ID system was used to sign in/out at work, each sign-in and each sign-in was a separate violation which could cost the employer $1,000 each time an employee signed in or signed out.
Antitrust Lawsuit
National Association of Realtors
Decades-old norms regarding Realtor commissions and other policies surrounding home buying and selling have been swept away by the March 15 court settlement between the National Association of Realtors and groups of homeowners who filed suit against the realtors’ group arguing that home buyers should pay their agents’ commissions directly and – most significantly – be able to negotiate that fee.
As a result of the settlement – which is still subject to the approval of the judge overseeing the case – the standard 6% commission on a home sale, heretofore split between the buyers’ and sellers’ agent, will be replaced with a system whereby prospective buyers can shop around for a lower rate and brokers can advertise those rates, even charging flat fees if they wish.
Texts can be held against you in court.
Alex Jones lawyers (perhaps inadvertently) turned 2-years of texts to the lawyers for the Sandy Hook families. What would be the repercussions for the disclosure if the trial were in Illinois?
The parents of a 6-year-old child that was killed in the Sandy Hook shooting had requested in discovery that Alex Jones turn over all the emails that related to shooting. Jones previously testified that he had searched his phone for texts about the Sandy Hook School shooting and found none, but Jones’s lawyers proved otherwise.
December 9.
The Illinois Supreme Court approved a new rule which authorizes any Illinois court to develop and use a text message notification system.
Amended Rule 14 is effective immediately and the full text of the rule can be viewed here.
As Chicago area business litigation lawyers this is a question we frequently are asked.
Electronic Signatures are Enforceable under Illinois Laws.
E-Signatures are permissible and valid in Illinois under the Illinois Electronic Commerce Security Act (the ECSA).
Did someone say force majeure?
COVID-19 Pandemic and Force Majeure clauses
According to Black’s Law Dictionary, force majeure is defined as “An event or effect that can be neither anticipated nor controlled.” It is generally viewed as an unexpected event that prevents someone from doing or completing something that he or she had agreed to do. The term is usually applied to acts of God (such as floods and hurricanes), riots, strikes and wars. It is unclear, however, if the term includes an epidemic, such as COVID-19. That legal term for unforeseen circumstances resulting in non-fulfillment of a contract is likely to be invoked widely this spring and summer as businesses are unable to make good on commitments due to the corona virus crisis.
The Illinois Freedom to Work Act, which prevents non-governmental employers from requiring that low-wage employees enter into non-compete agreements, has begun to impact case law in the past three years since it was enacted. Employers would be wise to take note.
Chicago Business Lawyers
The act, which defines “low-wage employees” as those earning the greater of $13 per hour, or the federal, state or local minimum wage, pushes back against employers who insert such agreements into new employee packets as a matter of course.
Employers who collect fingerprints, face scans, or other biometric information such as retina or iris scans from employees or customers would be well-advised to ask permission and explain their purpose for collecting this data. If they don’t, they could be legally liable.
That’s in the wake of a relatively liberal interpretation of the Illinois Biometric Information Privacy Act (BIPA), which regulates the handling of biometric data, from the Illinois Supreme Court. The result of the ruling is that state-level lawsuits have greater latitude than those filed in federal court—but even suits dismissed at the federal level can sometimes be refiled in state court. The law remains in flux when it comes to what, exactly, constitutes biometric data. Photographs are not considered biometric identifiers, for example, but a software application that collects facial scans could be—and even federal courts have allowed for relatively broad interpretations on this front, mindful of the galloping pace of technological advances.
The Illinois Supreme Court in January defined an aggrieved person as anyone whose information is collected without their consent or knowledge, even if they were not harmed in the process, in the case Rosenbach v. Six Flags Entertainment Corp. (2019 IL 123186), issued on January 25 of this year and previously detailed on this blog. This means employers are liable for $1,000 in damages for each negligent violations and $5,000 for each intentional violations. For example, if an employer fingerprints employees each day as they check in and out of the office, and does not notify employees of the collection and storage of these fingerprints, the business could be fined $2,000 per day per employee. Perhaps not surprisingly, at least 90 class-action lawsuits alleging violations of BIPA have been filed since January in Illinois state courts.
An arbitration agreement is a contract, in which two or more parties agree to settle a dispute outside of court. Usually, an arbitration agreement is a clause in a larger contract. The arbitration clauses are often subjects to hotly disputed litigation, stemming from the vague verbiage and possible inconsistencies with other parts of the contract. One of such issues – the admissibility of the “Wholly Groundless Exception” – was decided by the Supreme Court in January in the case of Henry Schein, Inc. v. Archer & White Sales, Inc , 586 U.S. __ (Jan. 8, 2019). This is a tricky issue for those in the trucking industry who include arbitration clauses in their contracts with drivers.
What Is A Wholly Groundless Exception?
A “wholly groundless exception” was born out of the “delegation clauses” ordinarily found in arbitration agreements. A delegation clause represents an agreement between parties that an arbitrator, not the court, will determine the threshold issues of enforceability of the arbitration clause and the scope of the arbitration agreement. In other words, it is up to an arbitrator to decide whether, according to the contract or the rule of law, an issue may be decided by arbitration or needs to be determined by a judge. These clauses were held to be valid by the Supreme Court in 2010 in Rent-A-Center, West, Inc. v. Jackson, 561 US 63 (2010). Since then, several circuits decided that this provision must be limited; thus creating a so-called “wholly groundless exception” to the delegation clause. This exception lets parties avoid compelling arbitration in cases where the claims are so obviously not within the scope of the agreement, that it would be a waste of time to go through arbitration before filing a lawsuit.
Chicago Business Attorney Blog