Knowledge The Blog

Coming off her first year at St. Louis University School of Law, Sarra Agha has joined Rasmussen Dickey Moore as a summer law clerk at our Downtown St. Louis office. Both she and the firm are excited for her first foray into the world of litigation!

After she completed her bachelor’s degree in international business and Middle East studies, Sarra enrolled at SLU’s School of Law to further her studies. During undergrad, Sarra was an active member of Zeta Tau Alpha. In law school, she has joined the Middle Eastern and North African Law Students Association and the Women Law Students Association.

Between undergrad and law school, Sarra spent time as an intern with Hacking Immigration Law helping immigrants who sought asylum in the United States. She also previously spent time as an English tutor with the International Institute of St. Louis.

This summer, Sarra will be focused on researching expert witnesses, reading depositions, and drafting motions. Also during the break, Sarra will have a brief internship with Judge James Dowd of the Missouri Court of Appeals, Eastern District. When she returns to school in the fall, she’s looking forward to participating in moot court and delving further into business and corporate law.

Sarra is a life-long St. Louisan. Away from the classroom and the office, she enjoys cooking, shopping, working out, and spending time with her friends and roommates.

We wish Sarra the best this summer and through her ongoing studies, and we hope to see her join our ranks of talented young litigators in the coming years!

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.

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.