Duane Morris Privacy Class Action Review – 2024

Privacy Class Actions I. Executive Summary

In an increasingly digitalized society, privacy is paramount for both companies and individuals. Businesses across the world purposefully have increased their use and reliance on biometric technology for various innovative purposes, such as to enhance the accuracy of their timekeeping systems, to facilitate consumer transactions, and to augment their security measures. Both the federal government and an increasing number of states anticipated this evolution and passed laws to ensure the security of personal information and to protect against the potentially harmful disclosure of sensitive biometric identifiers. Although some of the first privacy laws were passed decades ago, there has been a rapid rise in privacy class action lawsuit filings over the past few years. With privacy settlement values surging higher than ever before, companies must take heed of this focal point for the plaintiffs’ class action bar. In the rapidly evolving privacy litigation landscape, it is crucial for businesses to understand how courts are interpreting these often ambiguous privacy statutes. In 2023, courts across the country issued a mixed bag of results leading to major victories for both plaintiffs and defendants. Federal courts in New York, Tennessee, and California granted at least five separate Rule 12 motions to dismiss class action complaints brought under the federal Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. The VPPA, which was originally enacted in 1988, makes it unlawful for a “video tape service provider” to knowingly disclose, to any person, “personally identifiable information” concerning any “consumer” of such provider without their consent. On the state law side, the Illinois Biometric Information Privacy Act (BIPA) remains the most controversial and hotly litigated privacy law in the country. The BIPA, which was originally enacted in 2008, prohibits companies from collecting individuals’ biometric data without the requisite notice and consent. While both defendants and plaintiffs can point to major BIPA victories in 2023, this past year will be remembered for some of the landmark pro-plaintiff rulings that will provide the plaintiffs’ bar with more than enough ammunition to keep BIPA litigation in the headlines for the foreseeable future. In 2023, the Illinois Supreme Court issued two seminal decisions that increased the opportunity for recovery of damages under the BIPA. On February 2, 2023, the Illinois Supreme Court issued its ruling in Tims v. Black Horse Carriers , 2023 IL 127801 (Feb. 2, 2023), and held that a five-year statute of limitations applies to claims under the BIPA. Perhaps even more significantly, on February 17, 2023, the Illinois Supreme Court issued its ruling in Cothron, et al. v. White Castle System, Inc. , 2023 IL 1280004 (Feb. 17, 2023), and held that a claim accrues under the BIPA each time a company collects or discloses biometric information. These rulings have far-reaching implications. Together, they have the potential to increase monetary damages in BIPA class actions in an exponential manner, especially in the employment context, where employees might scan in and out of work multiple times per day across more than 200 workdays days per year. In the wake of these rulings, class action filings more than doubled. From January 1, 2023, to the ruling in Cothron , plaintiffs filed approximately 61 lawsuits in Illinois state and federal courts alleging violations of the BIPA. By contrast, in the same period of time following the ruling, plaintiffs filed 150 lawsuits in Illinois state and federal courts, representing a noteworthy increase of 71%.

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