Photo of Heather L. Kramer

Heather L. Kramer’s trial and litigation experience has been diverse and extensive. Throughout her career, she has represented businesses and individuals in disputes arising from fraud, breach of contract, privacy and consumer statutory violations (i.e., FDCPA, TCPA, BIPA, etc.), personal injury, premises liability, theft of trade secrets, trademark infringement, fraudulent conveyances, copyright infringement, breaches of fiduciary duty, and product liability. One significant area of Ms. Kramer’s practice is handling complex individual and class action litigation in the area of privacy and consumer financial services and fair debt collection practices. She has also defended individuals and businesses, directly or through retention by an insurance carrier, in a variety of personal injury litigation. She has tried cases before both juries and judges involving fraud, trademark infringement, covenants not to compete, and breaches of all types of commercial contracts. In addition to her trial experience, Ms. Kramer has successfully resolved matters through settlement or during the summary judgment or motion to dismiss stages.

The California Consumer Protection Act (“CCPA”) was in effect for just over three months when the American economy stopped cold in the face of the COVID-19 global pandemic. Much effort was expended in the months before the January 1, 2020 effective date to ensure compliance with the CCPA which, like its European cousin, the General Data Protection Regulation (“GDPR”) aspires to protect data and personal information. But also like the GDPR, many anticipated enforcement by the California attorney general (scheduled to begin on July 1, 2020) to provide guidance on how the CCPA would be interpreted and applied. Then the world came to a halt. Literally. Notwithstanding, as discussed in our earlier post, the California Attorney General has signaled that businesses subject to the CCPA should not expect any delays in enforcement. To be clear, privacy concerns did not cease to exist because of the pandemic. These concerns simply took a back seat as the world focused on defeating the virus. But privacy rights may be moving to the forefront again with the advent of COVID-19 tracking applications under consideration by governments seeking to use this technology to contain the spread of the virus. Most recently, on April 10, 2020, Google and Apple announced a joint endeavor to use Bluetooth technology in conjunction with apps from public health authorities to allow contact tracing of those individuals affected with COVID-19. The system is supposed to ensure users’ privacy and operate only with valid consent. See also our recent blog post on Locating COVID-19 Without the Location Data. Although tracking technology is not new–other iterations were used to track other diseases such as the seasonal flu–its use here would be one of the first to be used in the CCPA era. And arguably, the need to comply with the CCPA–passed by referendum in one state–has affected the usefulness of contact tracing solutions in every state. The Apple-Google solution, for example, covers the vast majority of mobile devices and is likely to be the only solution agreed upon by these two companies. It skirts the need to handle geolocation data, reducing the regulatory footprint under the CCPA, but the very lack of geolocation data degrades the usefulness of this system to local governments for finding and locking down hotspots–and to users in avoiding them. Few, if any, privacy professionals envisioned that preparation for CCPA compliance needed to include protocols for responding to governmental requests for data in combatting a public health crisis. But here we are.
Continue Reading Will COVID-19 Finally Prompt a Federal Privacy Law?

After the Illinois Supreme Court’s decision in January holding that a plaintiff need not show actual harm to be an “aggrieved person” under the Illinois Biometric Information Privacy Act (“BIPA”), parties litigating under BIPA have been testing other defenses. One of those defenses is whether BIPA matters can be compelled to arbitration pursuant to an arbitration provision set forth in the parties’ agreement.

On Tuesday, April 9, the First District Appellate Court of Illinois issued its decision in Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645, holding that a BIPA claim could not be compelled to arbitration based on the language of the employment agreement at issue. Specifically, the employment agreement provided that a dispute was subject to mandatory, binding arbitration if it “is based on one of the following types of claims as defined by law:  (a) employment discrimination; (b) harassment as it relates to my employment; (c) a wage or hour violation; (d) or termination of my employment from the Hotel.” Defendant argued that plaintiffs’ BIPA claim was a “wage or hour” dispute because the scans of plaintiffs’ fingerprints were used to track the hours the plaintiffs worked and therefore, it was an “hour” violation claim. The appellate court disagreed. 
Continue Reading Arbitration Clauses & BIPA: The Broader the Better