A federal judge has derailed a plaintiffs’ attempt to transfer a biometrics class action to Cook County, saying the litigation concerning handprint scans required for railyard access is more suited for federal court.
Truck driver David Fleury’s lawsuit, now more than two years old, alleged Union Pacific violated the Illinois Biometric Information Privacy Act because its identity verification kiosks collected and stored personal information, although the company never obtained written consent for the practice. He also alleged UP didn’t provide written disclosure of its data retention policy and said the railroad transmitted the biometric data to third parties.
In March 2021, U.S. District Judge Jorge Alonso turned back UP’s request to dismiss the complaint, rejecting the company’s argument the Federal Railroad Safety and Interstate Commerce Commission Termination acts should pre-empt Fleury’s claims as well as a contention he actually consented to collection of his data.
Melissa Siebert
| Shook Hardy & Bacon
In the months following that order, Fleury asked Alonso to sever part of his complaint and remand the claim regarding data retention and disclosure to Cook County Circuit Court as well as to lift a stay Alonso imposed in June 2021. Alonso issued his opinion on those requests June 2.
Under the BIPA law, companies can face damages of $1,000-$5,000 per violation, with each violation potentially counted as each time an employee scanned their handprint.
Attorneys Brendan Duffner and David Gerbie, of the firm of McGuire Law P.C., of Chicago, represent Fleury in the matter. Their effort to have the BIPA claims returned to state court echoed a years-old strategy from attorneys who sought to press similar claims in Cook County, a jurisdiction generally considered more friendly to plaintiffs.
To have the right to press a claim in federal court, plaintiffs must establish "standing." Under Supreme Court precedent, this means they must allege a concrete legal injury stemming from the violations.
But in Illinois state court, the Illinois Supreme Court has ruled plaintiffs need only allege a company violated a mere technical provision of the BIPA law, with no other real harm done, to bring potentially massive class action lawsuits, worth potentially many millions or even billions of dollars.
Fleury told Alonso he lacked federal standing because he only alleged UP committed a procedural BIPA violation by failing to publicly disclose its data retention and destruction policies. Alonso said UP, because it removed the complaint to federal court, has the burden of establishing the proper venue, and further said the company argued Fleury’s complaint actually alleged UP never developed the policies in the first place and also violated BIPA by unlawfully retaining his data.
“The failure to develop retention and destruction policies once (or before) an entity begins retaining a person’s biometric data inflicts a privacy injury in the same way that unlawful collection does,” Alonso wrote. “Consequently, once an entity collects a person’s biometric data, the duty to develop retention and destruction policies becomes one that adheres to the person whose identifiers were collected — much the same way the duty to comply with retention/destruction policies does.”
Alonso said a company’s obligation to develop data retention policies is particularized beyond the responsibility to publicly disclose those policies. He also rejected Fleury’s argument against his own federal standing based on his continued access to UP railyards, which he said means the continued data retention isn’t unlawful because UP hasn’t satisfied its initial purpose for collecting the handprint.
“It makes little sense to read BIPA this way because such a reading would contradict the proactive approach to biometric data collection and retention that the General Assembly sought when it enacted BIPA,” Alonso wrote. “BIPA requires (data retention) policies describe what happens to an individual’s biometric data after the initial purpose is completed or three years after the last interaction, but it does not say when those policies must be created.”
Alonso said he read Fleury’s allegations to imply UP was obligated to develop a retention policy as soon as it owned his data and denied the motion to remand the complaint.
However, Alonso did agree with Fleury that the stay on discovery he imposed last year is no longer needed. Other court rulings on separate BIPA litigation has clarified legal questions, he said, while also agreeing with Fleury that the longer his complaint stagnates, the greater likelihood of prejudice against Fleury.
“No doubt, the law as it relates to BIPA cases will continue to evolve,” Alonso wrote. “But that is not, in the Court’s view, a sufficient reason to continue staying this case. It is time for this case to move forward.”
He ordered fact discovery to wrap up by Sept. 30.
UP has been represented by attorneys Amy Yongmee Cho, Melissa A. Siebert and Jonathon M. Studer, of the firm of Shook, Hardy & Bacon LLP, of Chicago.