End of the BIPA Era? Federal Court Rules BIPA Amendment Applies Retroactively

On Nov. 13, Judge Elaine Bucklo of the United States Court for the Northern District of Illinois ruled that the Illinois legislature’s recent amendment to the Illinois Biometric Privacy Act (BIPA) limiting the damages available to plaintiffs applies retroactively, even to cases where the alleged violations occurred and the lawsuit was filed before the amendment’s adoption.

BIPA

BIPA provides that private entities may not “collect, capture, purchase, receive through trade, or otherwise obtain” or disclose a person’s or a customer’s biometric identifier or biometric information unless certain conditions are met including requiring that the entity provides notice, states the specific purpose of collecting the biometric identifier and for how long it is being collected, stored, and used, and obtains a written release (i.e., “consent”).

Due to the private right of action and the availability of liquidated damages – up to $5,000 per violation –BIPA litigation, especially class action litigation, exploded. The issue was exacerbated by two Illinois Supreme Court opinions. Cothron v. White Castle Systems held that each time a biometric identifier was collected or disseminated, that action constituted a separate violation. Tims v. Black Horse Carriers held that a five-year statute of limitations applied to BIPA, resulting in potentially business-killing damages for even inadvertent BIPA violations.

The Amendment

On Aug. 2, Illinois Governor J.B. Pritzker signed Senate Bill 2979 (the “Amendment”) into law. The Amendment, at the invitation of the Illinois Supreme Court in Cothron, clarifies that a private entity that collects or discloses “the same biometric identifier or biometric information from the same person using the same method of collection” in violation of BIPA has only committed a single violation for which the aggrieved person is entitled to, at most, a single damage recovery.

The Case

In Gregg v. Central Transport LLC, the plaintiff, John Gregg, sued in federal court claiming that Central Transport violated BIPA by collecting certain biometric identifiers. Gregg asserted federal diversity jurisdiction, relying on the pre-Amendment method of calculating liquidated damages under BIPA – a separate liquidated damages amount for each scan and each dissemination of his biometric information – to support his allegation that he met the jurisdictional minimum of $75,000.

Subsequent to the Amendment, Central Transport moved to dismiss for lack of subject matter jurisdiction. Central Transport claimed that the Amendment resulted in the plaintiff not meeting the jurisdictional minimum because his liquidated damages were, at most, only $15,000 ($5,000 for each statutory section violation). The question for the court was whether the Amendment applied to the plaintiff’s claims notwithstanding that the alleged violations occurred, and the lawsuit was filed, before the Amendment’s adoption.

The Northern District of Illinois reviewed various factors to determine if the BIPA Amendment was retroactive or not including: (1) “whether the enacting body declared it was clarifying a prior enactment;” (2) “whether a conflict or ambiguity existed prior to the amendment;” and (3) “whether the amendment is consistent with a reasonable interpretation of the prior enactment and its legislative history.” The Court expressly signaled that the Illinois Supreme Court in Cothron invited the legislature to “make clear its intent regarding the assessment of damages under the Act.”  Judge Bucklo explained and held that this language indicated an ambiguity in how damages were calculated and that limiting damages was consistent with BIPA’s original text.

Based on her finding that the Amendment applied retroactively, Judge Bucklo ruled that the plaintiff could only recover a maximum of $5,000 for each of his three claims – totaling, at best, $15,000 – notwithstanding multiple alleged collections and disseminations of his biometric identifiers while he was employed by the defendant.  That amount is well below the required $75,000 threshold for federal jurisdiction.  Judge Bucklo therefore dismissed the case.

Now What?

When the Illinois legislature passed the Amendment, a key question was whether the Amendment would apply retroactively, or only to new cases. At least in federal court, Judge Bucklo has ruled on that question finding that the Amendment applies to all cases – even those that were filed prior to the Amendment being adopted. Judge Bucklo’s direct and concise opinion could hasten an end to the onslaught of BIPA litigation that has built up in the state and federal dockets. While Judge Bucklo’s opinion is not binding on Illinois state courts, her clear analysis may provide guidance and a map for state courts. At a minimum, Gregg provides defendants with a significant argument against potentially exorbitant damages under BIPA.

Even with potential limits on liability, companies should not ignore BIPA and its requirements. If your business is using biometric identifiers – fingerprints, voiceprints, retina scans, etc. – BIPA provides specific disclosure and consent requirements that must be followed. Consult your Clark Hill legal advisor to ensure you are compliant with the law.

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