Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Tyler Zmick with their discussion of a $7 million BIPA class action settlement announced this month and analysis of developing trends in biometric privacy litigation spurred by cutting-edge technology and the ever-evolving innovation of the plaintiffs’ class action bar.
Jerry Maatman: Hello, loyal blog readers and listeners. Welcome to our Friday weekly podcast, the Class Action Weekly Wire. I’m joined by my colleague Tyler Zmick today, one of our BIPA thought leaders, to discuss privacy class action litigation in general and Illinois BIPA lawsuits in particular. Welcome, Tyler.
Tyler Zmick: Great to be here, Jerry. Thanks for having me.
Jerry: I look on the docket every day, and there seems to be just a mushroom cloud explosion of BIPA class action filings. What’s going on there, and what’s driving the plaintiffs’ bar to file so many of the BIPA cases?
Tyler: Sure, I mean, that’s absolutely accurate. It seems for years now that plaintiffs’ lawyers on the class action side have been filing BIPA cases on seemingly a daily basis. The impetus, the sort of driving force, I believe, is really just the possibility of very high levels of damages. It could be a lot of money involved for both class members and plaintiffs’ counsel, especially in the wake of very plaintiff-friendly Illinois Supreme Court decisions. We have just plaintiffs’ lawyers really just looking to cash in and join the many high dollar settlements that have been come into play in recent years.
Jerry: One of the areas of focus of the Duane Morris Class Action Review has been our tracking of settlements. I’m a believer that success begets copycats, and big settlements result in more filings and more plaintiffs’ lawyers attracted to the area. Recently in the news there was a large BIPA class action settlement preliminarily approved in federal court here in Illinois, about a Little Caesars. Could you tell us a little bit about that, and share your thoughts about what was going on in that case?
Tyler: Sure, Jerry, so this is a settlement between Little Caesars, the Pizza company, and thousands of employees who targeted the company’s finger scanning time clock. It’s a fairly old case filed initially in 2019, so it’s been pending for over four years now. The employees in the case asserted that Little Caesars violated BIPA by requiring employees to scan their fingerprints to clock in and out of work without first providing the necessary disclosures, or obtaining their express written consent. Little Caesars denied all allegations of wrongdoing, and denied that it violated BIPA.
This type of case – probably by and large, if you were to count by the numbers the factual context of different BIPA cases – employee timekeeping cases involving fingerprint scanning is probably the most common fact pattern, although far from the only fact pattern you would find in BIPA cases that are being filed.
Jerry: Can you explain to our listeners where you would peg this $7 million settlement kind of on the range of what large-scale BIPA cases have been settling for – either on an aggregate basis or on a per claimant per class member basis?
Tyler: I would say that this settlement of just under $7 million for a class of approximately 8,500 class members is right in the middle of the range of recoveries that we have seen over the past couple of years. When all fees for administrative costs and plaintiffs’ attorney fees are taken out of the picture, each class member will receive roughly $545 each – and that is really consistent with a number we’ve seen in a lot of BIPA class action settlements. And, importantly, if that number of class members stated in the settlement agreement turns out to be higher, the gross settlement fund will increase by $832 for each class member, just to make sure that the per class member payments do not change.
Jerry: You had mentioned this as an older case. Could you provide your analysis to our listeners about kind of the average length of time it takes for BIPA cases to work through either the state court system as compared to the federal system? This one, of course, was in the federal court.
Tyler: Yeah, sure, Jerry. So I think it’s hard to come up with an average lifespan for a BIPA case, just because some can be dismissed very early on if the fact investigation done by plaintiffs’ counsel reveals that there actually is no biometric data at issue in the in the case, and their allegations and complaint were actually untrue, then they’ll voluntarily dismiss the case. Other cases can reach settlements on an individual basis early on, or even on a class basis, early on. Whereas other defendants, this case Little Caesars, for a good period of time opt instead to litigate the case, and really to prove, either at the summary judgment stage or trial stage, that they did not, in fact, violate BIPA for a number of different reasons.
Jerry: Well, in following that mantra of ‘success begets copycats,’ and more of these cases get filed, could you share with corporate counsel what you view as the future of BIPA litigation, the types of claims apt to be brought? I know that in talking you to before, claims are divided into two boxes, one being employee-related cases and others being non-employee related cases.
Tyler: Yeah, absolutely. And that’s a great question. I think, as I mentioned, the most common type of BIPA case, historically, has been the employee. Timekeeping context and facts involving employees clocking in and out – either with fingerprints or face scans. I think, moving forward, we are likely to see non-employee BIPA class actions, and we can also expect to see BIPA cases brought against people that are further downstream than you might think. For example, a company like Amazon Web Services that provides cloud storage services, and is pretty far removed from any “collection” of biometric data that may have occurred relative to an end user. So it may have been collected by one entity, whether it’s an employer or timekeeping vendor, and then sent to another company and ultimately sent to some kind of cloud of storage service provider that really has no idea what’s on its servers. And we are seeing companies like that being sued under BIPA or other companies in similar situations, that are one step or two steps removed from consumers or employees, being named as defendants in BIPA cases.
Jerry: That’s an interesting perspective. I’d call that “BIPA 2.0: The Next Generation.” And the plaintiffs’ bar, I’ve found in my experience, is nothing if not innovative, and is pressing the envelope of statutes like BIPA. Well, Tyler, thank you so much for sharing your analysis and your thought leadership in this area. Loyal listeners, that signs off on another Friday weekly podcast – thanks so much for joining us.
Tyler: Thanks for having me, Jerry, always great to be here.