Respondus, an online college exam proctoring service, will pay $6.25 million to settle a class action lawsuit alleging it violated an Illinois biometric privacy law through facial scans.
Online proctoring programs, such as Respondus’ product, Respondus Monitor, typically lock down a student’s computer, allowing them only to interact with the exam, then use a computer’s camera and microphone to confirm the student’s identity, in part by scanning the student’s face. The program then monitors the student’s face and eyes throughout the exam to ensure they are not receiving help from off camera.
The class allegations say these scans violated students’ rights under the Illinois Biometric Information Privacy Act, because Respondus allegedly didn’t first secure written consent from students and didn’t provide notice concerning collection, storage, sharing and and ultimately destruction of biometric scans.
Acting as class counsel is attorney Gary Klinger, of the firm of Milberg Coleman Bryson Phillips Grossman, of Chicago. The plaintiffs' lawyers are expected to request up to $2.5 million, or 40% of the settlement fund, along with expense reimbursement of $50,000. Other firms that have represented named plaintiffs in the matter include the firms of Turke & Strauss, of Madison, Wisconsin; Murray Murphy Moul + Basil, of Columbus, Ohio; and Paronich Law, of Hingham, Massachusetts.
According to a notice published on the settlement website, individual payments are estimated at $50 for anyone who took an exam using Respondus Monitor, while physically in Illinois, from Nov. 11, 2015, through June 2, 2023, unless they were attending an Illinois public college or university. Claim forms are due by Aug. 30. Seven named plaintiffs are in line for $2,000 service awards.
The settlement agreementtraces the litigation history to the filing of a putative class action on March 31, 2021. Two weeks later Respondus removed the complaint to federal court, and then the next month sought to compel individual arbitration. In March 2022, U.S. District Judge Rebecca Pallmeyer, of the Northern District of Illinois, rejected most of Respondus’ efforts to dismiss the consolidated class actions.
In April 2022, Respondus asked the U.S. Seventh Circuit Court of Appeals to review denial of the motion to compel individual arbitration. In August, the Seventh Circuit panel denied the motion for reconsideration and a request for certification of two issues on interlocutory appeal. The parties had started mediation that May, but did not finish negotiating a deal until January 2023. They will seek settlement approval in DuPage County Circuit Court.
Although Respondus did not admit liability, the settlement agreement indicates the company “has taken additional steps to clarify its compliance with BIPA, including revising its Privacy Policy and Student Terms of Use, and verifying that any arguable biometric information always has been, and continues to be, stored only in transient memory and not saved to a permanent storage device or associated with an individual’s identity.”
Similar BIPA class actions have also targeted some of Respondus’ institutional customers, including Lewis University in Romeoville, Northwestern University in Evanston, and DePaul University in Chicago.
A final approval hearing is set for Aug. 31.
Respondus is represented by attorneys with the firm of Shook, Hardy & Bacon, of Chicago.