Duane Morris Privacy Class Action Review – 2024

voice templates by repeatedly speaking specific words into the Vocollect system, and the templates were unique to each worker and were influenced by their vocal characteristics. The plaintiffs further asserted that the defendant stored the voice templates, along with each worker ’ s name and employee number, in a central database. The plaintiffs claimed that the defendant violated the BIPA by not informing them about the collection and storage of their biometric data, failing to secure written consent, and not providing a retention schedule for destroying the biometric data. The defendant filed a motion to dismiss, or to strike the plaintiffs’ class claims. The court denied the motion to dismiss, and ordered limited discovery on whether the plaintiffs could establish class membership. The court concluded that the plaintiffs’ claims adequately alleged that the defendant possessed and actively collected their biometric information, thereby meeting the requirements of §§ 15(a) and 15(b). Additionally, the court considered the argument that the data collected was a voiceprint under the BIPA, and it found that the data was capable of identifying individuals and thus met the definition of a voiceprint. Accordingly, the court denied the defendant ’ s motion to dismiss. In Minor, et al. v. Oldcastle Services, Inc., 2023 U.S. Dist. LEXIS 48894 (S.D. Ill. Mar. 22, 2023), the plaintiff filed a class action alleging that the defendant violated the BIPA in its use of a biometric time clock for employees. The plaintiff passed away prior to the conclusion of the litigation, and the plaintiff ’ s adult son filed a motion for substitution of a party. The court granted the motion. The court noted that the Illinois Survival Act specifies that certain types of actions survive the death of a party. While the Survival Act does not explicitly mention claims under the BIPA, it includes actions for injuries to personal property and is interpreted broadly with consideration of present-day conditions. Given that the BIPA establishes a property interest in personal biometric information, the court determined that the BIPA claim survived the plaintiff ’ s death. The court therefore granted the motion for substitution, and named the plaintiff ’ s adult son as the new plaintiff to continue prosecuting the BIPA claim. Finally, in Thompson, et al. v Matcor Metal Fabrication (Illinois) Inc ., Case No. 2020-CV-132 (Ill. Cir. Ct. Dec. 7, 2023), the plaintiff, a former employee, filed a class action alleging that the defendant violated the BIPA by possessing, collecting, and disclosing his biometric data through its timekeeping system without complying with the BIPA’s notice and consent requirements. The parties filed cross-motions for summary judgment as to liability issues. The trial court granted the plaintiff’s motion and denied the defendant’s motion, and thereby entered a finding on liability in the plaintiffs’ favor on a class-wide basis. The plaintiff asserted that the defendant collected fingerprints from all employees in order to use a timekeeping system to clock-in and clock-out of work. When the defendant collected his fingerprints, it did not inform him where the fingerprints were being stored, and did not provide him with any notice regarding collecting, retaining, and destroying the data. The court first that the data collected constituted biometric data under the BIPA and granted the plaintiff’s motion on that point. The court rejected the defendant’s argument that expert testimony would be required to determine whether the data was biometric information. Furthermore, the court reasoned that the defendant’s collection of the class member’s biometric data constituted it taking “possession” of the data as defined in the BIPA. Id . at 8. The court determined that there was no genuine dispute that the defendant violated § 15(b) of the BIPA by collecting the class members’ biometric data without obtaining their written consent. Id . at 9. The court did not find persuasive the defendant’s argument that the plaintiff impliedly waived his rights under Section 15(b) by continuing to clock-in and out of work, as there was no evidence in the record that the plaintiff knew of his statutory rights when he used the timekeeping system. The court also found that the defendant violated § 15(d) of the BIPA by automatically sending the timekeeping information to its third-party vendor without obtaining consent for the data transfers. The court concluded that the defendant made no effort to comply with the BIPA until 2021 when it provided consent forms to employees, and therefore the plaintiff sufficiently established negligence relating to the defendant’s actions. Finally, the court stated that viewing the record in the light most favorable to the defendant, and drawing all reasonable inferences in its favor, there was no issue of material fact remaining on the defendant’s liability and the plaintiff was entitled to judgment as a matter of law. Id . at 16. Despite many of the key BIPA cases taking place within the Illinois courts, other courts across the country

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