On September 5, 2019, the federal district court for the Northern District of Illinois issued an order that denied a motion to dismiss a class action brought under the Illinois Biometric Information Privacy Act (“BIPA”). Although the claims in Rogers v. CSX Intermodal Terminals, No. 19-2937, 2019 U.S. Dist. LEXIS 151135 (N.D. Ill. Sept. 5, 2019) largely survived a motion to dismiss, the district court did hand the defense bar a small—but potentially significant—victory.

The plaintiff in Rogers is a former truck driver.  His duties included visiting CSX facilities to pick up and deliver freight. The plaintiff was required to scan his fingerprints to gain entrance to the facility. The plaintiff filed a BIPA class action based on CSX’s failure to provide the required disclosures before collecting his fingerprints and to maintain a publicly available policy on CSX’s retention of biometric data. The complaint also alleged that CSX’s violations were intentional and reckless, an allegation which if proven would result in a $5,000 per violation penalty. 

CSX moved to dismiss the complaint under Rule 12(b)(6), arguing that the plaintiff voluntarily provided his fingerprints when he could have refused to do so. CSX also contended that it was only required to maintain a public policy at the collection of the biometric data. The court rejected both of these arguments finding that the plaintiff was an aggrieved party even if he voluntarily provided his fingerprints and the facts pled were sufficient to state a claim for violation of the publicly available policy requirement. The court did accept CSX’s contention that the complaint failed to support a knowing and willful violation of BIPA, and that cut off potentially heightened damages.

The district court agreed with CSX that the conclusory allegations of knowing and willful BIPA violations did not suffice to avoid dismissal. The district court reasoned that the conclusory allegations in and of themselves did “nothing to distinguish this case from every possible BIPA case where the defendant is alleged to have failed to meet the strictures of Section 15.  Rogers, 2019 U.S. Dist. LEXIS 151135 at *31. The plaintiff was given leave to replead, if he so chose.  Id.

At first glance, Rogers is easily overlooked as one of the many cases where attempts to distinguish the Illinois Supreme Court opinion in Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186 (2019) fails. But practically, Rogers may encourage defendants to remove BIPA class actions to federal court—where Rogers sets a high bar for pleading entitlement to heightened damages under BIPA. Eliminating this heightened damages potential greatly reduces a BIPA defendant’s damage exposure. If more BIPA cases are removed to federal court, there are more opportunities for a federal court to decide cases of first impression on additional substantive provisions of the Illinois law. This in turn may result in an advantage to the defense bar, given the current climate defendants face in Illinois state courts post Rosenbach.

For more information regarding this article, please contact Rosa Tumialán.

For information regarding Dykema’s Privacy and Data Security Team, please contact Cindy Motley.

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