The Illinois Biometric Information Privacy Act, 740 ILCS 14/1 through 14/99, was enacted in 2008 to manage the promise of biometric technology for Illinois residents. BIPA seeks to encourage the development and use of biometric technology by imposing requirements on private entities that collect and possess biometric data. 740 ILCS 14/15(a). BIPA safeguards the collection and protection of “biometric identifiers,” which are defined as a “retina or iris scan, fingerprint, voiceprint, or scan of hand or face,” and also safeguards “biometric information,” which is defined as “any information, regardless of how it is captured, converted, stored[] or shared, based on an individual’s biometric identifier used to identify an individual.” 740 ILCS 14/10. However, the promise of large statutory damages have prompted a series of lawsuits against companies using biometric technology, alleging that such biometric information was collected and retained without the proper policies and disclosures in place. 740 ILCS 14/15. Following are some of the recent developments regarding BIPA litigation in Illinois.

Perhaps most importantly, the first BIPA case finally went to trial, resulting in a large judgment for the plaintiff putative class. The case, Rogers v. BNSF Railway, revolved around BNSF’s auto-gate systems at its four Illinois facilities. The auto-gate system requires truck drivers to scan their fingerprints for entry and egress into BNSF’s facilities. The court denied BNSF’s motion for summary judgment and BNSF chose to proceed to trial, arguing that the auto-gate system technology provider — not BNSF — should be liable. Despite this argument, the class of more than 45,000 truck drivers won a $228 million judgment after a jury found that BNSF violated BIPA by collecting employee fingerprints without proper consent. The result indicates that Illinois juries are willing to award large judgments upon findings of BIPA violations — at least when it comes to employees. The BNSF result reinforces what many companies have suspected thus far: Settling or dismissing BIPA cases early is the preferred route, particularly before large putative classes can be established.

Thus far, the vast majority of BIPA cases have featured similar putative classes as the BNSF case. These classes are namely groups of employees (such as truck drivers) who are required to use their biometric identifiers for employment purposes. A classic — and widely litigated — example of this type of suit is a putative employee class that brings a BIPA action as a result of a company using employees’ fingerprints to “punch in” for timekeeping. See, e.g., Cothron v. White Castle Sys., Inc., 477 F. Supp. 3d 723 (N.D. Ill. 2020) (employee class claiming that White Castle committed BIPA violations after requiring employees to use a time-keeping system that required employees to punch in using fingerprint scans without properly adhering to disclosure or retention policies). The litigation surrounding these types of cases has been largely procedural. See, e.g., Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563, ¶ 32 (holding claims brought under BIPA Section 15(c) and (d) are subject to a one-year statute of limitations).

However, aside from these procedural arguments, Illinois’ courts have seen an influx of BIPA suits alleging an entirely new type of putative class: customers. This newest spate of BIPA suits focuses on the use of virtual try-on features by companies. These virtual try-on features essentially allow customers to log on to their favorite brand’s website and then, using either their camera or an uploaded picture, overlay a desired product onto their own face or body. For instance, the popular makeup brand Estee Lauder uses such technology on its website, allowing customers to “try on” various makeup products before purchasing them (https://www.esteelauder. com/virtually-try-on-makeup-skincare). An Illinois federal judge recently allowed a suit against the company for the try-on product, holding that there was at least a colorable claim that Estee Lauder collected customers’ facial geometry to overlay the desired makeup product.

Thus far, it appears that the threshold issue for these cases is how the technology works. Polsinelli attorneys have had success in similar suits (representing companies using identical technologies as those used by Estee Lauder), arguing the specific factual bases of the cases. For instance, Polsinelli represented a hair-coloring product using the same virtual try-on feature and was successful in dismissing the first complaint arguing that “hair” is not a protected feature under BIPA. Similarly, arguments can focus on how the technology operates. For instance, courts interpreting statutes similar to BIPA have focused on whether the biometric technology actually captures “biometric identifiers” or “biometric information” or simply operates by coloring pixels to achieve the “overlay” appearance. See, e.g., Rivera v. Google Inc., 238 F. Supp. 3d 1088, 1096 (N.D. Ill. 2017) (discerning between the fact that photographs themselves cannot be biometric identifiers, but face templates measuring facial features on those photographs may capture biometric information). Companies will argue that while photographs can serve as a medium to capture biometric information, they cannot be the underlying biometric identifiers from which that information is derived. Whether this argument gains traction among courts may be of some importance. If these cases regarding virtual try-on features survive past the pleadings stage, then they may require intensive expert witness testimony to sort through the technology, quickly becoming financially burdensome.

In sum, the maxim that companies should get out of BIPA lawsuits early still stands. Plaintiffs have found creative new avenues to assert these claims and putative classes have continued to rise. Coupled with large statutory damages, it is imperative that companies move quickly to settle or dismiss complaints as early as possible.