18th Annual Workplace Class Action Report - 2022 Edition

674 Annual Workplace Class Action Litigation Report: 2022 Edition the BIPA also did not confer federal jurisdictional standing. Accordingly, the Court severed Plaintiff’s § 15(a) and (c) claims, and remanded those claims back to state court. As to Plaintiff’s claims of violation of § 15(b) of BIPA, Defendant argued that the Court lacked personal jurisdiction over the claim. Plaintiff alleged that the Court had specific jurisdiction over the claim. The Court agreed with Plaintiff, and reasoned that while Defendant may have also served a nationwide market, its business centered on scanning Illinois employees’ biometric information and handling the resulting data. Id. at *14. The Court held that Defendant’s conduct in the Illinois biometric information market led to it capturing Plaintiff’s biometric data in Chicago, and Plaintiff’s BIPA claims arose directly out of Defendant’s biometric information business in Illinois. Accordingly, the Court denied the motion to dismiss for lack of personal jurisdiction. The Court also found that Plaintiff sufficiently stated a claim of a § 15(a) violation of the BIPA, as it specifically described how Defendant obtained Plaintiff’s biometric information without informing her that it was collecting her biometrics, explaining why it was using her information, and for how long. Accordingly, the Court granted Plaintiff’s motion to remand in part and denied Defendant’s motion to dismiss. Kislov, et al. v. American Airlines, Inc., 2021 U.S. Dist. LEXIS 194911 (N.D. Ill. Oct. 8, 2021). Plaintiffs, a group of customers who utilized Defendant’s customer service department, filed a state court class action alleging that Defendant’s use of IVR software collected and analyzed callers’ actual voiceprints, and thereby collected, possessed, and disclosed the voiceprint identifiers in violation of the Illinois Biometric Information Protection Act (“BIPA”). Defendant removed the action. In Count I of the complaint, Plaintiffs alleged that Defendant violated § 15(a) of the BIPA by failing to "make publicly available any policy addressing its biometric retention and destruction policies." Id . at *8. Plaintiffs filed a motion requesting to sever the claim and remand the single count back to state court for lack of Article III standing. Defendants contended that Plaintiffs alleged a concrete and particularized injury such that Count I could remain in the Court with the remaining claims. The Court granted Plaintiffs’ motion. The Court held that the Seventh Circuit’s recent decision in Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020), addressed whether a § 15(a) BIPA claim satisfied Article III standing and mirrored the allegations in this matter. The Seventh Circuit had found in Bryant that Plaintiff had not alleged a "concrete and particularized injury" from Defendant’s statutory violation because "the duty to disclose under section 15(a) is owed to the public generally, not to particular persons whose biometric information the entity collects." Id . at *9-10. The Court thus determined that under Bryant , Plaintiffs’ claims did not allege a concrete and particularized injury sufficient to confer standing. Accordingly, the Court granted Plaintiffs’ motion and remanded the § 15(a) claim back to the state court. Knapke, et al. v. PeopleConnect, 2021 U.S. Dist. LEXIS 150249 (W.D. Wash. Aug. 10, 2021). Plaintiff filed a class action alleging that Defendant’s website, Classmates.com, a website that offers visitors access to Classmates’ digital records database, used her name and photo in advertisements on the Classmates website to advertise and/or sell Defendant’s products and services in violation of the Ohio Right of Publicity Law (“ORPL”). Defendant filed a motion to dismiss, and the Court denied the motion. Defendant asserted several arguments in its motion to dismiss, including: (i) Plaintiff agreed to arbitrate her claim; (ii) Plaintiff’s claim was barred by the Communications Decency Act (“CDA”); (iii) Plaintiff’s claim was preempted by the Copyright Act; (iv) Plaintiff failed to allege a viable claim under the ORPL; (v) Plaintiff’s claims fell within an exemption under the ORPL; (vi) the First Amendment protected Classmates from Plaintiff’s claims; and (vii) the "dormant" commerce clause of the U.S. Constitution rendered Plaintiff’s claims subject to dismissal. Id . at *3. The Court rejected all of Defendant’s arguments. The Court determined that Plaintiff never made an account on Defendant’s website, and thus she was not bound by the arbitration agreement contained in Defendant’s terms and conditions. The Court explained that Defendant was not entitled to protection under the CDA, because the advertisements were not merely some passive display of content created by another entity, Rather, Defendant created the content. The Court opined that the non-consensual use of Plaintiff’s name and likeness for advertising caused the claim to fall outside of the Copyright Act’s preemption. The Court ruled Plaintiff sufficiently alleged that Defendant used her persona for a commercial purpose, and that the ORPL exemptions did not apply to her claims. Finally, the Court reasoned that a critical requirement for proving a violation of the dormant commerce clause was that there must be a substantial burden on interstate commerce, which was not present here. For these reasons, the Court denied Defendant’s motion to dismiss. Krause, et al. v. Rocketreach , 2021 U.S. Dist. LEXIS 179676 (N.D. Ill. Sept. 21, 2021). Plaintiff, a prospective customer, filed a class action alleging that Defendant violated the Illinois Right to Privacy Act (“IRPA”) by