Duane Morris Privacy Class Action Review – 2024

thereby exempt from the BIPA because it was a financial institution covered by the Gramm-Leach-Bliley Act, which the BIPA exempts from coverage. Amazon argued that it was also exempt because the call center utilizing the caller verification was also a financial institution. The court rejected Amazon ’ s argument, finding that there was nothing in the BIPA that says that service providers for financial institutions are exempt from the BIPA ’ s requirements. Accordingly, the court granted in part and denied in part the defendants’ motion to dismiss, while keeping Amazon in the case. Finally, In Baker, et al. v. Match Group, Inc ., 2023 U.S. Dist. LEXIS 211133 (N.D. Ill. Nov. 28, 2023)., the plaintiffs filed a class action alleging that the defendant, a dating application site, scanned his face and collected his biometric data without written, informed permission in violation of the BIPA). The plaintiff agreed to the defendant’s terms of service, which included an arbitration provision waiving the right to file a class action and requiring arbitration, and therefore initially filed a demand for arbitration. The defendant sought to resolve the claims in small claims court in Texas pursuant to an exemption in the arbitration agreement. The plaintiff thereafter filed this action, and the defendant moved to dismiss. The court denied the motion for forum non conveniens , finding that small claims court would not be the appropriate venue for the action since the damages request exceeded $20,000, which was beyond the scope of damages allowed in small claims court in either Texas or Illinois. The court also transferred the action to the U.S. District Court for the Northern District of Texas. The defendant filed a motion for reconsideration of the court’s ruling pursuant to Rule 59(e). The court denied the motion. The defendant argued that the court made several manifest errors of law in the dismissal order, including: (i) the prior order was an impermissible advisory opinion; (i) the court improperly dismissed the parties' delegation of jurisdictional analysis to the small claims court; (iii) the court failed to enforce the JAMS arbitration order; (iv) the court improperly found that Illinois small claims courts did not have jurisdiction over the plaintiff’s claims; and (v) the court did not apply the proper presumption under Atlantic Marine Construction Co. Inc., et al. v. U.S. District Court for the Western District Of Texas, 571 U.S. 49 (2013). The court rejected the first argument, stating that the prior order only addressed the concrete question of whether small claims courts in Illinois or Texas would have jurisdiction over the plaintiff’s claims. Id . at *3. As to the defendant’s argument that the complaint was not sent to JAMS, the court determined that the defendant only moved to dismiss, not to compel arbitration of the plaintiff’s claims, and thus the argument could not be brought on Rule 59(e) motion. The court stated that even considering the merits of this argument, the defendant failed to present a manifest error of law warranting reconsideration. As to the defendant’s challenge of the finding on small claims court jurisdiction, the court found that it did not err in determining that the small claims court would be inadequate to address the plaintiff’s claims due to the injunctive relief sought. The court also ruled that Atlantic Marine did not apply when the designated forum did not have jurisdiction. Accordingly, the court denied the defendant’s motion for reconsideration. In Kuklinski, et al. v. Binance Capital Management Co. , 2023 U.S. Dist. LEXIS 59418 (S.D. Ill. Apr. 4, 2023), the plaintiff alleged that the defendants, cryptocurrency exchange BAM Trading Services Inc., BAM Trading’s partner Binance Capital Management Co., and BAM Trading’s identity-verification vendor Jumio Corp., collected account holders’ facial geometry for identify-verification purposes shortly after they download the “BAM” application. The plaintiff claimed that the defendants violated the BIPA in connection with that process by collecting their facial biometrics without complying with the statute’s notice-and- consent requirements. All three defendants moved to dismiss. The court granted Binance Capital Management Co.’s motion after finding that the court lacked personal jurisdiction over that defendant. But the court denied the motions to dismiss filed by BAM Trading and Jumio. The court held that the plaintiff adequately pleaded causes of action under the BIPA against both BAM Trading and Jumio, and that neither entity qualified for the BIPA’s exemption for financial institutions that are subject to the federal Gramm-Leach-Bliley Act (the GLBA). While neither the Illinois Supreme Court nor any Illinois Appellate Court has examined the scope of the financial-institution exemption, the court opined that it was “doubtful” the exemption would apply to BAM Trading or Jumio because the plaintiff’s complaint did not describe either entity as a financial institution and did not allege that either was engaged in any activity that renders

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