March 19, 2019 Articles

The Forthcoming Wave of Biometrics Class Actions

Consumer-facing businesses should thoroughly investigate their compliance with BIPA unless they want to go surfing.

By Geoffrey J. Derrick

Plaintiffs have recently filed multiple new putative class actions in Illinois state courts against businesses that collect consumers’ biometric information. Those filings follow the Illinois Supreme Court’s watershed opinion in Rosenbach v. Six Flags Entertainment Corp., which clarifies the expansive scope of Illinois’s Biometric Information Privacy Act (BIPA). 740 Ill. Comp. Stat. 14/1 et. seq. (2008).

Yet the dozens of recent class action complaints may just be whitecaps on the forthcoming wave of biometrics class actions. New York City and Florida are now considering equivalent biometrics laws that, like BIPA, contain a private right of action. Texas and Washington already have biometrics statutes that, while lacking private rights of action, are ripe for public enforcement. Tex. Bus. & Com. Code § 503.001; H.R. 1493, 65th Leg., Reg. Sess. (Wash. 2017).

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