Duane Morris Privacy Class Action Review – 2024

data was used to identify him. In so arguing, Lytx relied on the statute defining “biometric information” as any information “used to identify an individual.” 740 ILCS 14/10. The court disagreed and denied Lytx’s motion. In its order, the court held that a cause of action under the BIPA does not require a plaintiff to plead that the data collected is used for identification purposes. See Lewis , 2023 WL 4181242, at *2 (opining that the BIPA is not concerned with “ how an individual’s data is used” but rather “ ensur[ing] that consumers understand , before providing their biometric data, how that information will be used, who will have access to it, and for how long it will be retained”) (emphases in original). In Walton, et al. v. Roosevelt University, 2023 IL 128338 (Ill. Mar. 23, 2023), the plaintiff, a former employee, filed a class action alleging that the defendant violated §§ 15(a), 15(b), and 15(d) of the BIPA in connection with its use of the timekeeping system by: (i) failing to develop a written policy made available to the public establishing a retention policy and guidelines for destroying biometric data, (ii) collecting his biometric data without providing him with the requisite notice and obtaining his written consent, and (iii) disclosing his biometric data without consent. The defendant moved to dismiss on the basis that the plaintiff ’ s claims were preempted by § 301 of the Labor Management Relations Act (LMRA). Specifically, the defendant argued that the plaintiff had been a union member while employed, and the collective bargaining agreement (CBA) between the parties contained a management rights clause broad enough to cover the manner by which union employees clocked-in and out of work. As support, Roosevelt cited the decision in Miller, et al. v. Southwest Airlines Co. , 926 F.3d 898 (7th Cir. 2019), which held that federal labor law preempts BIPA claims when the claims require interpretation or administration of a CBA. The trial court rejected Roosevelt ’ s LMRA preemption argument, finding Miller distinguishable and holding that the BIPA claims were “not intertwined with or dependent substantially upon consideration” of terms of a CBA because a person ’ s rights under the BIPA “exist independently of both employment and any given CBA.” Id. at 6. Because the issue presented a close call, however, the trial court certified the following question for interlocutory appeal: “Does Section 301 of the [LMRA] preempt [BIPA] claims asserted by bargaining unit employees covered by a [CBA]?” Id. The Illinois Appellate Court answered the certified question “yes.” In doing so, it noted that the Seventh Circuit had recently come to the same conclusion in a case where “the relevant factual and legal circumstances . . . [were] indistinguishable.” Id. at 8 (citing Fernandez v. Kerry, Inc. , 14 F.4th 644 (7th Cir. 2021)). The Appellate Court determined that Fernandez reached the correct conclusion, as the BIPA “contemplates the role of a collective bargaining unit acting as an intermediary on issues concerning an employee ’ s biometric information.” Id. at 10 (noting that the BIPA prohibits private entities from collecting biometric information without obtaining consent from the subject or the subject ’ s legally authorized representative). The Illinois Supreme Court subsequently allowed the plaintiff ’ s petition for leave to appeal, after which it affirmed the Appellate Court ’ s decision. In comparing the plaintiff ’ s case to the Seventh Circuit decisions, the Supreme Court acknowledged that the relevant CBA provisions in the plaintiff ’ s case and in Fernandez both contained similarly broad management rights clauses. In sum, because the Supreme Court did not find Miller and Fernandez to be clearly erroneous, it deferred to the uniform federal case law on the issue and held that when an employer invokes the CBA ’ s broad management rights clause in response to a BIPA claim brought by a bargaining unit employee, the plaintiff ’ s BIPA claims are preempted by the LMRA. In Warmack-Stillwell, et al. v. Christian Dior, Inc., 2023 U.S. Dist. LEXIS 22926 (N.D. Ill. Feb. 10, 2023), the plaintiff filed a class action alleging that the defendant maintained a virtual try-on tool (VTOT) feature on its website that collected users’ facial geometry data without first obtaining written consent or informing users of the purpose and length of time that their data was being collected in violation of § 15(b) of BIPA. The plaintiff also alleged that the defendant failed to provide a publicly available data retention and destruction schedule, as required by § 15(a) of the BIPA. The defendant moved to dismiss the plaintiff ’ s complaint on the basis that the BIPA ’ s health care exemption applied to non-prescription sunglasses, such as the ones sold by the defendant and which the plaintiff alleged that she tried on with the VTOT technology, and thus precluded the plaintiff ’ s claims. The plaintiff countered that the sunglasses were fashion accessories; the defendant ’ s website was not a health care setting; and consumers were not patients within the meaning of the BIPA. The plaintiff also sought to distinguish prior decisions applying the BIPA ’ s health care exemption as focusing on the VTOT technology being used for prescription glasses,

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