{"id":117,"date":"2022-10-12T13:17:15","date_gmt":"2022-10-12T17:17:15","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=117"},"modified":"2022-10-19T10:26:21","modified_gmt":"2022-10-19T14:26:21","slug":"illinois-district-court-rejects-trio-of-bipa-defenses-in-denying-motion-to-dismiss","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2022\/10\/12\/illinois-district-court-rejects-trio-of-bipa-defenses-in-denying-motion-to-dismiss\/","title":{"rendered":"Illinois District Court Rejects \u201cTrio\u201d Of BIPA Defenses in Denying Motion to Dismiss"},"content":{"rendered":"

\"\"<\/a><\/em>By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Tyler Z. Zmick<\/strong><\/p>\n

Duane Morris Takeaways:<\/em><\/strong> In Trio v. Turing Video, Inc., No. 21-CV-4409, 2022 WL 4466050 (N.D. Ill. Sept. 26, 2022), the Court issued yet another plaintiff-friendly decision under the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d), putting businesses on notice that the statute can apply to technology used to screen individuals for purposes of preventing the spread of COVID-19.\u00a0 The Court denied<\/a> the three arguments raised in the Defendant\u2019s motion to dismiss, and held that: (1) personal jurisdiction existed because the Defendant sent \u201cbiometric\u201d devices to multiple Illinois-based customers; (2) the Plaintiff\u2019s claims were not preempted by the Labor Management Relations Act; and (3) Plaintiff adequately alleged claims under BIPA. The ruling in Trio ought to be required reading for corporate counsel dealing with privacy class action litigation.<\/em><\/p>\n

Background<\/strong><\/p>\n

Plaintiff alleged that Defendant Turing Video, Inc. sold \u201cproducts integrated with artificial intelligence,\u201d including the Turing Shield, a \u201ckiosk that allows Turing\u2019s customers to screen their employees for COVID-19.\u201d\u00a0 See <\/em>Mem. Op. & Order at 2.\u00a0 According to Plaintiff, the Turing Shield works by screening a user\u2019s temperature through the device\u2019s camera, thereby using its \u201cartificial intelligence algorithm\u201d to recognize the user based on his or her facial geometry, and detecting whether the user is wearing a protective mask.\u00a0 Plaintiff also alleged that data collected through the Turing Shield was transmitted to third parties who host that data.<\/p>\n

Plaintiff previously worked in Illinois for New Albertson\u2019s, Inc. d\/b\/a Jewel-Osco, where she used the Turing Shield at the start of each workday as part of the store\u2019s COVID-19 screening process.\u00a0 Based on her use of the device, Plaintiff claimed that Turing violated the BIPA by: (i) failing to inform her that the Turing Shield would collect her biometric data, and (ii) disseminating her biometric data to third parties without her consent.<\/p>\n

Turing moved to dismiss on three grounds, including: (1) that the Court lacked personal jurisdiction; (2) Plaintiff\u2019s claims were preempted by the Labor Management Relations Act; and (3) Plaintiff failed to state a claim upon which relief could be granted.<\/p>\n

The Court\u2019s Decision<\/strong><\/p>\n

The Court denied Turing\u2019s motion to dismiss on all three grounds.<\/p>\n

Personal Jurisdiction<\/u><\/p>\n

Turing argued that the Court lacked specific personal jurisdiction because Turing was a non-forum (i.e.<\/em>, California) resident that sold the devices used by Plaintiff to a non-party, Jewel-Osco (also a non-forum resident), and Jewel-Osco brought the devices into Illinois without Turing\u2019s involvement.<\/p>\n

The Court held that the evidence \u2013 which showed Turing had over 30 Illinois-based customers and had shipped Turing Shields into Illinois \u2013 established that Turing had the requisite minimum contacts with Illinois to establish personal jurisdiction.<\/p>\n

Labor Management Relations Act Preemption<\/u><\/p>\n

The Court next addressed Turing\u2019s argument that Plaintiff\u2019s claims were preempted by Section 301 of the Labor Management Relations Act (the \u201cLMRA\u201d), which establishes federal jurisdiction over \u201csuits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce.\u201d\u00a0 Courts typically interpret Section 301 as preempting state law claims that are \u201csubstantially dependent on analysis of a collective-bargaining agreement.\u201d\u00a0 Id.<\/em> at 18.<\/p>\n

Here, Plaintiff was represented by a union and subject to a collective bargaining agreement (\u201cCBA\u201d) while employed at Jewel-Osco.\u00a0 Based on those facts, Turing claimed that resolving Plaintiff\u2019s BIPA claims for alleged privacy invasions sustained through her work required the Court to interpret the CBA.\u00a0 The Court disagreed. It held that Plaintiff\u2019s claims were not preempted because the Court could resolve the claims without interpreting the CBA.<\/p>\n

The Court recognized that the Seventh Circuit has held that federal law preempts BIPA claims brought by certain union-represented employees against their employers.\u00a0 See Miller v. Southwest Airlines Co.<\/em>, 926 F.3d 898, 903 (7th Cir. 2019); Fernandez v. Kerry, Inc.<\/em>, 14 F.4th 644, 646-47 (7th Cir. 2021).\u00a0 The Court distinguished those cases because Turing was not a party to the CBA, and \u201cTuring\u2019s obligations under BIPA stand wholly independent of whether Plaintiff\u2019s union may have consented to Jewel-Osco . . . collecting and disseminating her biometric data.\u00a0 In other words, resolution of the state law BIPA claims would not require this Court to interpret any [CBA], and instead depend upon the entirely unrelated question of whether Turing provided Plaintiff with the necessary disclosures and obtained from her the required written release before it collected and disseminated her biometric information.\u201d\u00a0 Mem. Op. & Order at 20-21.<\/p>\n

Extraterritoriality & PREP Act Immunity<\/u><\/p>\n

Finally, the Court rejected Turing\u2019s arguments that: (i) Plaintiff failed to allege that Turing\u2019s relevant conduct occurred in Illinois, and (ii) the Public Readiness and Emergency Preparedness Act (the \u201cPREP Act\u201d) immunized Turing from BIPA liability.\u00a0 Regarding extraterritoriality, the Court held that Plaintiff sufficiently alleged that Turing\u2019s conduct occurred \u201cprimarily and substantially\u201d in Illinois, thereby satisfying the \u201cextraterritoriality doctrine.\u201d\u00a0 Id.<\/em> at 25. Regarding PREP Act immunity, the Court noted that the PREP Act provides immunity from liability relating to the \u201cuse of a covered countermeasure\u201d upon the declaration of a public health emergency by the Secretary of the Department of Health and Human Services.\u00a0 The Court held that PREP Act immunity did not apply because the Food and Drug Administration had not approved the Turing Shield, meaning the device did not satisfy the definition of a \u201ccovered countermeasure.\u201d Id.<\/em> at 28.<\/p>\n

Conclusion<\/strong><\/p>\n

Trio<\/em> can be added to the list of recent plaintiff-friendly BIPA decisions, as it reinforces the growing consensus that multiple private entities can be subject to liability under the statute for what may seem like a single \u201cviolation.\u201d<\/p>\n

The case also raises a potential hurdle to asserting jurisdictional defenses to BIPA claims based on its holding that personal jurisdiction can exist even where the defendant does not send into Illinois the specific device used to collect a plaintiff\u2019s \u201cbiometric\u201d data.\u00a0 Other courts, however, appear more willing to dismiss BIPA claims on personal jurisdiction grounds.\u00a0 See, e.g.<\/em>, Gutierrez v. Wemagine.AI LLP<\/em>, Case No. 21-CV-5702, ECF No. 32, Mem. Op. & Order at 1 (N.D. Ill. Oct. 7, 2022) (available here<\/a>)\u00a0(dismissing BIPA case for lack of personal jurisdiction despite plaintiffs\u2019 allegation that defendant\u2019s app \u201cderives substantial revenue from nearly 5,000 Illinois-based users\u201d).<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By: Gerald L. Maatman, Jr., Jennifer A. Riley, and Tyler Z. Zmick Duane Morris Takeaways: In Trio v. Turing Video, Inc., No. 21-CV-4409, 2022 WL 4466050 (N.D. Ill. Sept. 26, 2022), the Court issued yet another plaintiff-friendly decision under the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d), putting businesses on notice that the statute can apply … <\/p>\n

Continue reading “Illinois District Court Rejects \u201cTrio\u201d Of BIPA Defenses in Denying Motion to Dismiss”<\/span><\/a><\/p>\n","protected":false},"author":583,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[41],"tags":[],"ppma_author":[30,7,9,12],"class_list":["post-117","post","type-post","status-publish","format-standard","hentry","category-arbitration-issues"],"authors":[{"term_id":30,"user_id":583,"is_guest":0,"slug":"classactiondefense","display_name":"Class Action Defense","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2020\/10\/dmlogo.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":9,"user_id":576,"is_guest":0,"slug":"jariley","display_name":"Jennifer A. Riley","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/08\/rileyjennifer-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":12,"user_id":578,"is_guest":0,"slug":"tzzmick","display_name":"Tyler Z. Zmick","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/zmicktyler-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/117","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/583"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=117"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/117\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=117"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=117"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=117"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=117"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}