Data Breach/Privacy

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Seyfarth Synopsis:  Although the Illinois Supreme Court’s recent decision in Rosenbach v. Six Flags may have upped the ante for employers facing litigation under the Illinois Biometric Information Privacy Act (“BIPA”), a recent bill introduced in the Illinois Senate, SB2134, would remove plaintiffs’ right to bring private causes of action under Illinois Biometric Information Privacy Act (“BIPA”) and instead allow them to file a complaint with the Illinois Department of Labor (“IDOL”), and to be enforced by the DOL and the Illinois Attorney General.

If this proposed bill ultimately becomes signed legislation, it would be the death knell for private party BIPA class actions. As ten or more BIPA class actions are being filed in Illinois state and federal courts on a daily basis,  employers should closely follow developments involving this proposed legislation while concurrently pursuing BIPA compliance activities.

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Seyfarth Synopsis: The Illinois Supreme Court has held that a plaintiff may sue for mere violation of BIPA, regardless of injury. The ruling will likely greatly increase the potential exposure of companies in actions alleging violations of the Act and makes strict compliance with the Act significantly important.  Accordingly, businesses using or licensing biometric technology in Illinois or collecting or receiving biometric data on individuals in Illinois must take immediate compliance measures or else face the potential of significant liability and damages in class action litigation.

The Illinois Biometric Information Privacy Act

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Executive Summary and Takeaway. User agreements for websites and apps have become increasingly prevalent in recent years, and courts have had to adapt traditional rules of contract interpretation to the new digital frontier. On June 25, 2018, the First Circuit reversed a district court decision enforcing an arbitration clause contained in the terms of service for the defendant’s smartphone app, finding that those terms were not sufficiently “conspicuous” for a user to know that he or she had agreed to be bound by them. The First Circuit’s decision continues a trend of judicial hostility to arbitration clauses, and is notable for its scrutiny of the record below: the court studied in minute detail the design and content of the registration screen containing a hyperlink to the terms of service—including the size, shape, color, font, and location of the hyperlink—and concluded that the link to the terms of service failed “to grab the user’s attention.” Businesses with similar user agreements governed by Massachusetts law or that could potentially apply to Massachusetts consumers should review their websites and/or apps to ensure that their platforms disclose any terms of use in a clear and conspicuous manner in relation to the rest of the content on the screen.

Additional Background. To use the services provided by the defendant company (the “Company”) via its smartphone app, a customer must first register with the Company by creating an account. As part of the registration process, users are shown a screen that requests their payment information and notifies them that by creating an account they are agreeing to the Company’s Terms of Service and its Privacy Policy:

The words “Terms of Service & Privacy Policy” are in a clickable box that includes a hyperlink. Upon clicking on that hyperlink, the user is directed to a screen with two other links: one to the Terms of Service, and the other to the Privacy Policy. The user can view either document by clicking on the appropriate link.

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Seyfarth Synopsis: In light of the uncertainties surrounding lawsuits alleging violations of the Illinois Information Biometric Privacy Act (“BIPA”), the Northern District of California has taken a firm position on a plaintiff’s Article III standing. U.S. District Judge James Donato delivered opinions in In re Facebook Biometric Info. Privacy Litig., Case No. 15-CV-03747; 2018 U.S. Dist. LEXIS 30727 (N.D. Cal. Feb. 26, 2018) and Gullen v. Facebook Inc., Case No. 16-CV-00937; 2018 U.S. Dist. LEXIS 34792 (N.D. Cal. March 2, 2018), denying Facebook’s motions to dismiss for lack of subject matter jurisdiction in both cases. The court held that plaintiffs’ Article III standing was satisfied through mere collection of biometric information.

The decisions provide plaintiffs the ability to get their feet in the door and threaten businesses and employers alike. The court dismissed Facebook’s argument that Article III standing requires “real-world harms,” stating that the argument exceeds the law. Instead, the court held that a plaintiff has standing when they are deprived of procedures that protect statutorily protected interests, similar to the procedures outlined in the BIPA.…
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Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.

What Is The BIPA?

Intending to protect consumers,…

shutterstock_519689296Seyfarth Shaw is pleased to announce the launch of Carpe Datum Law, a one-stop resource for legal professionals seeking to stay abreast of fast-paced developments in eDiscovery and information governance, including data privacy, data security, and records and information management. Seyfarth’s eDiscovery and Information Governance (eDIG) practice group created Carpe Datum Law to serve…

For lawyers who frequently litigate class action lawsuits, whether or not the named plaintiffs have standing to bring a claim is one of the first issues that is analyzed and considered.  Plaintiffs’ lawyers often look for named plaintiffs that have suffered easily identifiable damages, while defense lawyers often rely on standing defenses to ward off…

WebinarOn Thursday, September 10 at 12:00 p.m. Central, Seyfarth attorneys Michael Burns, Robert Milligan and Jason Stiehl will present the second installment of our 2015 Class Action Webinar Series. Presenters will discuss the climate to help retailers avoid becoming targets of litigation. This webinar will provide an overview of the current class action lawsuit landscape…