{"id":402,"date":"2023-03-30T17:46:05","date_gmt":"2023-03-30T21:46:05","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=402"},"modified":"2023-12-01T17:45:42","modified_gmt":"2023-12-01T21:45:42","slug":"illinois-court-dismisses-bipa-class-action-brought-against-seller-of-point-of-sale-technology","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/03\/30\/illinois-court-dismisses-bipa-class-action-brought-against-seller-of-point-of-sale-technology\/","title":{"rendered":"Illinois Court Dismisses BIPA Class Action Brought Against Seller Of Point-Of-Sale Technology For Lack Of Personal Jurisdiction"},"content":{"rendered":"

\"\"<\/a><\/i><\/b>By Gerald L. Maatman, Jr., Tyler Z. Zmick, and Shaina Wolfe<\/b><\/p>\n

Duane Morris Takeaways:\u00a0 <\/i><\/b>In White v. HungerRush LLC<\/i>, No. 22-1206 (C.D. Ill. Mar. 28, 2023), the Court dismissed<\/a><\/u> claims for violations of the Biometric Information Privacy Act (\u201cBIPA\u201d) brought against a company that sells point-of-sale technology for lack of personal jurisdiction.\u00a0 White<\/i> serves as a reminder to businesses that personal jurisdiction in Illinois may be lacking where their conduct has only a tenuous connection to Illinois and\/or where they do not \u201ccollect\u201d or \u201cpossess\u201d biometric data.\u00a0 This ruling \u2013 which is largely consistent with federal court decisions addressing the issue \u2013 is a rare win for companies facing BIPA class actions, and is a required read for companies facing privacy class action litigation.<\/p>\n

Case Background<\/b><\/p>\n

Plaintiff worked at a restaurant in Peoria, Illinois, which used a point-of-sale system sold by Defendant HungerRush LLC, a Texas-based company.\u00a0 While working at the restaurant, Plaintiff enrolled her fingerprint onto the point-of sale system as a means of clocking in and out of work.\u00a0 She later sued the Texas-based Company, claiming that it violated the BIPA in connection with its sale of the point-of sale system by (i) failing to develop a written policy made available to the public establishing a retention policy and guidelines for destroying biometric data, and (ii) collecting her biometric data without providing her with the requisite notice and obtaining her written consent.<\/p>\n

In response to the complaint, the Company moved to dismiss on the basis that the Court lacked personal jurisdiction.\u00a0 In support of its jurisdictional argument, the Company submitted an affidavit signed by its Chief Administrative Officer and General Counsel.<\/p>\n

The Company\u2019s affidavit explained that: (i) it is a Texas-based company; (ii) it does not manufacture finger-scan devices or software; (iii) Plaintiff\u2019s employer purchased a point-of-sale system from it and separately purchased a finger-scan device from a third-party; (iv) the finger-scan device operates independently from its software; and (v) finger-scan data is not transmitted to its point-of-sale software \u2013 instead, the finger-scan device sends only an approval signal to its software.<\/p>\n

Based on these facts, Defendant argued that its limited contact with Illinois (i.e.<\/i>, selling a point-of-sale system to Plaintiff\u2019s Illinois-based employer) was insufficient to establish personal jurisdiction.<\/p>\n

The District Court\u2019s Decision <\/b><\/p>\n

The Court granted the Company\u2019s motion to dismiss under Rule 12(b)(2).<\/p>\n

First, the Court noted that \u201c[w]here, as here, the defendant submits \u2018evidence opposing the district court\u2019s exercise of personal jurisdiction, the plaintiff must similarly submit affirmative evidence supporting the court\u2019s exercise of jurisdiction.\u2019\u201d\u00a0 The Court explained that because Plaintiff failed to submit any evidence refuting the Company\u2019s evidence, i.e. <\/i>the sworn affidavit, the affidavit was considered \u201cunrebutted.\u201d<\/p>\n

Second, the Court found that the Company\u2019s unrebutted evidence demonstrated that it did not have sufficient minimum contacts with Illinois for this case and it was not reasonably foreseeable that Plaintiff\u2019s claims related to the Company\u2019s contacts with Illinois. Significantly, Plaintiff failed to submit any evidence refuting the affidavit\u2019s sworn statements that Plaintiff\u2019s Illinois-based employer initiated the transaction with the Company, that any contracts the Company makes with Illinois restaurants are made in Texas with Illinois restaurants reaching out to the Company, that the Company\u2019s system has no cloud functions, or that the Company does not and has never manufactured a fingerprint scanner.<\/p>\n

The Court held that because Plaintiff failed to offer evidence or adequate explanations refuting the Company\u2019s sworn statements, she failed to meet her burden in establishing personal jurisdiction.<\/p>\n

Implications For Employers<\/b><\/p>\n

White<\/i>\u00a0serves as a reminder that companies must have sufficient contacts with the state in order for the courts to have personal jurisdiction over them.\u00a0 In other words, companies with only limited contacts with Illinois will not be subject to personal jurisdiction in courts within Illinois.<\/p>\n

White<\/i> also illustrates the importance of submitting extrinsic materials (e.g.<\/i>, sworn affidavits) in support of showing lack of personal jurisdiction.\u00a0 Significantly, once the defendant has submitted affidavits or other extrinsic evidence supporting lack of jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.\u00a0 Moreover, courts can dismiss BIPA class actions for lack of personal jurisdiction based on supporting affidavits \u2013 even where the affidavits speak in part to the merits of the case.\u00a0 See<\/i> Order & Op. at 8.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Tyler Z. Zmick, and Shaina Wolfe Duane Morris Takeaways:\u00a0 In White v. HungerRush LLC, No. 22-1206 (C.D. Ill. Mar. 28, 2023), the Court dismissed claims for violations of the Biometric Information Privacy Act (\u201cBIPA\u201d) brought against a company that sells point-of-sale technology for lack of personal jurisdiction.\u00a0 White serves as … <\/p>\n

Continue reading “Illinois Court Dismisses BIPA Class Action Brought Against Seller Of Point-Of-Sale Technology For Lack Of Personal Jurisdiction”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[59],"tags":[28,27,50,26],"ppma_author":[7,12],"class_list":["post-402","post","type-post","status-publish","format-standard","hentry","category-privacy-class-actions","tag-biometrics","tag-bipa","tag-class-action","tag-illinois-biometric-privacy-act"],"authors":[{"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":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\/402","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\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=402"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/402\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=402"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=402"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=402"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=402"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}