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A fingerprint being scanned for security. Illinois' Biometric Information Privacy Act (BIPA) regulates the collection and usage of biometric data by private entities.

The Illinois Supreme Court has answered a long-awaited question regarding the Illinois Biometric Information Privacy Act (BIPA) and its interaction with the state’s workers compensation statute. In McDonald v. Symphony Bronzeville Park, LLC, the Supreme Court addressed a certified question from the Court of Appeals to determine whether the Worker’s Compensation exclusivity provisions bar an employee’s claims filed under BIPA. The Court distinguished those workplace injuries suffered that were subject to the exclusivity provision, reasoning that a BIPA violation “is not the type of injury that categorically fits within the purview of the Compensation Act and is thus not compensable under the Compensation Act.”

In doing so, the Supreme Court removed what had previously been the prevailing defense for employers accused of technical violations of BIPA. The Court stated, “We are cognizant of the substantial consequences the legislature intended as a result of [BIPA] violations. Pursuant to [BIPA], the General Assembly has adopted a strategy to limit the risks posed by the growing use of biometrics by businesses and the difficulty in providing meaningful recourse once a person’s biometric identifiers or biometric information has been compromised.”

This dictum strengthens the recent holdings of Illinois’s Appellate courts, which have weighed in on the BIPA ruling on an expansive definition for when a claim accrues and leaving open the question of how to calculate damages for successive violations. This question may need to be addressed on remand in the McDonald case, which involves the repeated scanning of an employee’s fingerprint to keep track of worked time.

What constitutes biometric information and how does BIPA protect it?

Illinois enacted the Illinois Biometric Information Privacy Act in 2008 to create a private tort action in response to privacy violations related to biometric data. BIPA states a “Biometric Identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.

Given the rise of biometric data used across industries such as transportation, finance, hospitality, retail, and education, all businesses must be keenly aware of the requirements under the act. Any private entity which collects biometric information must:

  • Create a publicly available policy on its biometric data practices;
  • Provide disclosures;
  • Obtain releases from individuals for whom biometric identifiers are collected before the collection occurs; and
  • Use a reasonable standard of care based on industry to store, transmit, and protect the information.

Who can make a BIPA claim?

The Illinois Biometric Information Privacy Act is written broadly to protect any individual (consumers, employees, etc.) who might have a biometric identifier collected by a private entity.

Importantly, in a watershed 2019 decision by the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corp., the Court’s unanimous decision settled a circuit split among Illinois appellate courts regarding the pleading standard for demonstrating a claimant was “aggrieved” under the act determining a claimant need not plead actual harm to recover under the statute.

Six Flags had a practice of collecting fingerprints for pass membership to their amusement park but had not complied with the notice and consent provisions of BIPA. The Second District Illinois Appellate Court dismissed the claim given there was no breach and consequently no actual harm demonstrated. However, the Illinois Supreme Court reversed the decision, finding that “aggrieved” under BIPA included technical violations of the statutory requirements because they created substantive rights. 

“Such a characterization, however, misapprehends the nature of the harm our legislature is attempting to combat through this legislation. The Act vests in individuals and customers the right to control their biometric information by requiring notice before collection and giving them the power to say no by withholding consent.”

The Illinois Biometric Information Privacy Act has distinct subparts which could each constitute individual violations:

  • Failing to develop a written policy under 15(a);
  • Failing to provide written notice of collection under 15(b);
  • Profiting from the biometric data under 15(c);
  • Unlawfully disclosing the biometric identifier under 15(d); or
  • Not taking reasonable care in storing, transmitting, or otherwise protecting the information under 15(e).

When does a BIPA claim accrue?

In Watson v. Legacy Healthcare Financial Services, LLC et al., the First District Illinois Appellate Court determined that a claim does not accrue on only the initial capture of a claimant’s biometric data but at the time of each individual capture.

What are the damages in a BIPA claim?

The court in Watson did not address whether each capture represented a separate violation under the Illinois Biometric Information Privacy Act or how multiple captures of biometric data might affect monetary damages under BIPA, which establishes damages in the amount of $1,000 for each negligent violation and up to $5,000 for intentional or reckless violations. A claimant is entitled to seek more if their actual damages would exceed the statutory amount. 

In enacting the law, the Illinois General Assembly expressly noted that “[b]iometrics are unlike other unique identifiers that are used to access finances or other sensitive information. For example, Social Security numbers, when compromised, can be changed. Biometrics, however, are biologically unique to the individual; therefore, once compromised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.”

Biometric Information Privacy outside of Illinois

Currently, only the states of Arkansas, California, Texas, and Washington have enacted legislation similar to Illinois’ Biometric Information Privacy Act. Additionally, several large cities have adopted their own biometric technology regulations, including New York City, San Francisco, Baltimore, and Portland, Oregon.

Numerous other legislatures, including Missouri, have bills in the works to adopt BIPA-like legislation in the future.

Protect yourself from BIPA claims

Technology evolves, and so does the law. Whether your business is on the cutting edge or keeping up with the times, it’s imperative that you have skilled counsel on your side. The attorneys at Rasmussen Dickey Moore can help your business maintain compliance and stay out of the courtroom or work to extricate you from litigation should it arise. Contact RDM today to protect your business from BIPA claims.

RDM attorney Vincent Gunter successfully filed a motion for summary judgment on behalf of a client at the Jackson County Courthouse in Kansas City, MO. Photo by Cat Craig.

Rasmussen Dickey Moore attorney Farhan M. Zahid represented a mother in a pro bono termination of parental rights trial in October. Three months later, Judge Jalilah Otto of the 16th Circuit Court in Jackson County, Missouri, finally issued a ruling.

Judge Otto held that the Petition was not sustained and ordered that the mother’s rights not be terminated. The Judge took particular interest in this case and repeatedly agreed with arguments Farhan made at trial.

The mother was alleged to have left the kids alone in the home with diaper rash and vomit. During the pendency of the case, she tested positive for marijuana, missed 70 visits arranged by the Children’s Division, and was convicted for shoplifting. The cards were stacked against the client.

A First for Marijuana Card Holders in Missouri

Farhan represented his client zealously in this case, convincing the Court to apply California precedent in this case—an unprecedented occurrence in Missouri. For the first known time in the Show-Me State, a court held that where a parent in a juvenile court matter who has a medical marijuana card, the substance-free requirement and associated negative urinalysis drug tests are not allowed to be ordered or held against the parent as a factor in consideration of termination of parental rights. This also brings to the forefront the issue of whether the state punishing mothers for using THC by removal of their children is a violation of the Missouri Constitution’s provision for medical marijuana.

The judgment does conclude on custody that it will remain as ordered in the underlying neglect case. However, in that case, the Judge has delayed proceedings to find out how Judge Otto will rule on the termination of parental rights trial. Meanwhile, the Children’s Division is already in the transition period, making preparations for the three children to all return to their mother. It is plainly obvious that essentially res judicata will be applied in the judgment of the underlying case.

RDM Fights Hard

Needless to say, Farhan’s client is elated at the outcome. At RDM, our attorneys fight hard with zeal for all of our clients and are undeterred by an uphill battle. If you are seeking top-notch, state-of-the-art trial counsel defense involving products liability and other litigation, contact RDM to discuss your case today.

RDM handles employment and labor law cases, including compliance with ADA regulations.

On July 26th, 1990, one of the most transformative pieces of civil rights legislation was passed into law: the Americans with Disabilities Act, otherwise known as the ADA. The ADA was created to prohibit discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all other public and private areas opened to the public. Today many of us can see the effects of the ADA just by walking into a building or riding public transportation.

The ADA is divided into five sections to protect individuals with disabilities in different areas of life:

  • Title I: Employment
  • Title II:  Public Services: State and Local Government
  • Title III:  Public Accommodations and Services by Private Entities
  • Title IV: Telecommunications
  • Title V: Miscellaneous Provisions

The ADA does not provide an exhaustive list of conditions that are protected under the act. Some believe the ADA was designed to be incomplete so that it could be expanded and include new disabilities. For example, in July of 2021, President Joe Biden announced that individuals suffering from serious long-term COVID-19 could qualify as disabled under the ADA.

Employers’ Obligations under the ADA

Many ADA lawsuits filed against businesses are based on allegations of discrimination, which include allegations relating to Title I of the ADA. Therefore, it is crucial for employers to understand their rights and obligations under the ADA.

Continue reading Employer Compliance with the Americans with Disabilities Act
The Illinois First District Court of Appeals in Downtown Chicago. Photo by Vincent Desjardins.

The Appellate Court of Illinois, First Judicial District recently found that the COVID-19 pandemic was a factor that weighed against forum transfer in Bearden v. Conagra Foods, Inc. In this case, 45 plaintiffs brought a total of 39 product liability actions in the circuit court of Cook County against Conagra Foods, Inc., Conagra Brands, Inc., DS Containers, Inc., and Full-Fill Industries, LLC. Conagra Foods and the other defendants involved filed a combined motion to dismiss for forum non conveniens as to the out-of-state plaintiffs and a motion to transfer out of Cook County for the in-state plaintiffs. The circuit court issued a ruling without hearing argument dismissing the defendants’ motions and issued its findings.

Interestingly, in addition to weighing the standard private and public interest legal factors, the court also weighed another factor that has had both private and public implications for all of us over the past two and a half years: COVID-19.

While wrangling up all the necessary witnesses that could testify in a case involving numerous out-of-state plaintiffs and corporations with offices and employees across the country might be a factor against a forum in certain cases, here, the circuit court found that because of the COVID-19 pandemic, it was likely that most or all of the witnesses would testify by video and that remote depositions and testimony would likely be used. The court found that the arguments that court dockets would be backlogged and that jury trials might be postponed or delayed were not persuasive because COVID-19 had rendered that the case in every jurisdiction.

The circuit court did find, however, that jury visits to the sites weighed in favor of dismissal or transfer, not specifically because of COVID-19, but one could easily assume that if the court considered COVID-19 in other factors, perhaps having a jury travel to multiple states during a pandemic influenced its decision on that point as well.

COVID-19 as a Factor

On appeal, the defendants argued that the circuit court improperly found that COVID-19 weighed against dismissal or transfer. They argued that including COVID-19 as a factor was an abuse of the circuit court’s discretion. Upon review, the appellate court upheld the circuit court’s ruling in total, including its inclusion of COVID-19 in its list of factors.

The appellate court stated that “a circuit court’s decision is an abuse of discretion when it is arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view.” Bearden v. Conagra Foods, Inc., 2021 IL App (1st) 210234-U, ¶ 71 (quoting Palacios v. Mlot, 2013 IL App (1st) 121416, ¶ 18. The appellate court found that the circuit court’s consideration of such issues as testifying virtually or by video, packed dockets, and delayed jury trials, were not fanciful, arbitrary, or so unreasonable that no person would ever take the view of the circuit court. In affirming the circuit court’s decision, the appellate court has determined that COVID-19, and more specifically the impacts and related measures taken on and by the legal system can be a factor considered by Illinois circuit courts in deciding a forum non conveniens issue.

The New Normal During COVID-19

The factors considered by the circuit court in this case are familiar to anyone in the legal profession that has continued to work throughout the COVID-19 pandemic. Zoom and telephonic depositions have become the norm, trial dates have been pushed back multiple times, and pajama pants have become standard dress code while in webcam meetings (well, the court didn’t explicitly consider that last one, but we all know how important that’s become).

Concerns for Defendants

Forum non conveniens motions are a viable tool for defendants seeking to have cases dismissed, avail themselves of friendlier state or local laws, or a more favorable jury pool. Some of the standard factors weighing in favor of a transfer have been effectively negated by the measures taken by the legal profession to address the challenges of the COVID-19 pandemic. Now that courts and law firms have knowledge of these measures, they are not likely to go away anytime soon and could be damaging to a defendant’s motion for forum non conveniens efforts.

With many state legal systems continuing to utilize these COVID-19 measures and now precedent on the books in one of the busiest legal arenas in the country, it is possible that other courts and other states could follow the Illinois circuit court’s lead and explicitly consider COVID-19 in their analysis of forum non conveniens motions. For defendants, this could prove to be a bigger headache than trying to get that one co-counsel to mute their phone during your cross-examination. But hey, at least you don’t have to show the plaintiff how to work the Zoom camera.

Rasmussen Dickey Moore's St. Louis office at 10 South Broadway.

At the end of 2021, two outstanding Rasmussen Dickey Moore associates were named members of the firm. We’re proud to welcome Travis Pour and Brandon Powell as new partners in our St. Louis office!

“We’re excited that our firm is growing,” says Nate Lindsey, member attorney in the St. Louis office. “And that includes promoting new leaders and partners like Brandon and Travis.”

Both Travis and Brandon joined our St. Louis office as associate attorneys in 2018. Their work focuses on toxic torts, products liability defense, and insurance defense, though they also have experience in business law, environmental law, and other fields.

“I am very pleased to have Travis and Brandon joining the partnership at RDM,” says Bryan Skelton, another St. Louis-based member attorney. “I have worked with Travis since 2013 and with Brandon since 2017. They have been a very significant part of my team from the beginning.  They are both excellent attorneys who will serve our clients well into the future. I am looking forward to working with them for many years to come.”

Travis Pour, attorney at Rasmussen Dickey Moore.

Travis Pour

Travis received a Bachelor of Science in Construction Engineering from Purdue University and attended law school at Southern Illinois University School of Law in Carbondale, obtaining his Juris Doctor in 2013. With a background in construction engineering, Travis focuses his practice in areas that he has hands-on experience with, defending corporate clients in the construction industry.

“I am honored to be named a partner and I am looking forward to being a part of Rasmussen Dickey Moore’s growth and success.”

Travis and his wife, Katie, find themselves chasing their 18-month-old son, Jude, in their free time. Away from the office and home, Travis helps out at his family’s winery, The Pour Vineyard, in Red Bud, Illinois.

Brandon Powell, attorney at Rasmussen Dickey Moore.

Brandon Powell

Brandon is also a 2013 SIU School of Law alum, graduating summa cum laude, while also serving as editor-in-chief of his law journal and member of the school’s moot court board. Prior to law school, Brandon received his bachelor’s degree in economics from the University of Evansville in Indiana.

Following a term as a judicial extern for Illinois Supreme Court Justice Lloyd Karmeier in 2013, Brandon began his practice in Evansville, representing corporate clients in a variety of complex litigation matters. He has extensive trial and appellate experience, both in state and federal courts.

“My entire legal career has been focused on litigation, and I am extremely excited to continue to work with the group of tenacious, detail-oriented litigators at RDM.”

Brandon and his wife, Jennifer, are parents to three boys, including twins born in November of 2021. They reside in O’Fallon, IL