Landmark Biometric Privacy Victory

CHALLENGE

One of the world's largest airlines was targeted for its use of fingerprint scans for employee timekeeping in one of the first major class actions filed under the landmark Illinois Biometric Information Privacy Act (BIPA). We were asked to defend this unique case and guide the airline through the intersection of BIPA and the company's corresponding labor agreement at the state and federal levels.   

SOLUTION

We developed a strategy that hinged on the interplay of BIPA and our vast institutional experience representing employers governed by the Railway Labor Act (RLA), which provides a federal structure for collective bargaining agreements involving airline and railway companies.

Separated by nearly a century, this matter presented an unlikely juxtaposition of cutting-edge and arcane laws: BIPA was enacted in 2017, the RLA in 1926. We embarked on arguments that the underlying claims were governed by the parties' respective collective bargaining agreement and thus may only be resolved through the grievance and arbitration process provided for in the agreement—and under the RLA.

First, we successfully removed this BIPA case from state to federal court on two grounds: (1) the Class Action Fairness Act, and (2) RLA preemption. This novel approach was the first argument in the US asserting that BIPA claims were preempted by the RLA. The federal court agreed, granting a motion to dismiss all claims on the grounds that the claims were completely preempted, earning the first dismissal of any BIPA complaint on RLA complete preemption grounds. On plaintiff's motion for relief from judgments, the District Court reversed itself and ordered the case be remanded to state court. We then filed a petition with the Seventh Circuit under CAFA, seeking the right to have the remand order reviewed by the appellate court. In a rare move, the Seventh Circuit granted the petition, which became its first opinion to address BIPA litigation. Ultimately, the Seventh Circuit found the plaintiff's injury was sufficient to allow the courts to continue to exercise federal jurisdiction and that plaintiff's BIPA claims were completely preempted by the RLA, a complete win for the airline.

RESULTS

Over the last decade, several circuits had concluded that there is no complete preemption under the RLA. It was in doubt in the Seventh Circuit at the time of our client's appeal, but federal jurisdiction has now been revived by our efforts, a significant victory for our airline client and all other US-based airlines. Today, defendants across the country have adopted our defense, which has also become a bedrock for other preemption challenges to BIPA.