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Financial Services Law Insights and Observations


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  • District Court approves $15 million class action settlement over BIPA violations


    On February 18, the U.S. District Court for the Northern District of Illinois granted preliminary approval of a class action settlement, resolving allegations that a workplace management software company (defendant) violated the Illinois Biometric Information Privacy Act (BIPA) by collecting data without providing the requisite disclosures or obtaining informed written consent. According to the plaintiff’s motion for preliminary approval, the settlement class is comprised of nearly 172,000 Illinois employees who used the defendant’s biometric timekeeping devices at work and whose finger-scan data “was hosted” by the defendant. The defendant denied any violation of BIPA. Under the settlement agreement, the defendant will pay approximately $15 million into a non-reversionary settlement fund, and settlement class members, who need to file a valid claim to receive payment, are expected to receive between $290 and $580 each.

    Courts Class Action Privacy/Cyber Risk & Data Security BIPA State Issues Illinois

  • Fed announces enforcement action against Illinois bank

    On February 10, the Federal Reserve Board announced an enforcement action against an Illinois-based bank. According to the consent order, the bank allegedly violated the National Flood Insurance Act (NFIA) and Regulation H. The order assesses a $253,500 penalty against the bank for an alleged pattern or practice of violations of Regulation H but does not specify the number or the precise nature of the alleged violations. The maximum civil money penalty under the NFIA for a pattern or practice of violations is $2,000 per violation.

    Bank Regulatory Federal Issues Federal Reserve Enforcement Illinois Flood Insurance National Flood Insurance Act Regulation H

  • Illinois Supreme Court rules Workers’ Compensation Act does not bar BIPA privacy claims

    Privacy, Cyber Risk & Data Security

    On February 3, the Illinois Supreme Court unanimously ruled that the Illinois Workers’ Compensation Act (Compensation Act) does not bar claims for statutory damages under the state’s Biometric Information Privacy Act (BIPA). According to the opinion, the plaintiff sued the defendant and several other long-term care facilities in 2017 for violations of BIPA, alleging their timekeeping systems scanned her fingerprints without first notifying her and seeking her consent. The defendant countered that the Compensation Act preempted the plaintiff’s claims, but in 2020 the Illinois Appellate Court, First District, held that it failed to see how the plaintiff’s claim for liquidated damages under BIPA “fits within the purview of the Compensation Act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.” As such, the appellate panel concluded that the Compensation Act’s exclusivity provisions “do not bar a claim for statutory, liquidated damages, where an employer is alleged to have violated an employee’s statutory privacy rights under the Privacy Act, as such a claim is simply not compensable under the Compensation Act.”

    In affirming the appellate panel’s decision, the Illinois Supreme Court agreed that the “personal and societal injuries caused by violating [BIPA’s] prophylactic requirements are different in nature and scope from the physical and psychological work injuries that are compensable under the Compensation Act. [BIPA] involves prophylactic measures to prevent compromise of an individual’s biometrics.” Additionally, the Illinois Supreme Court held that the plain language of BIPA supports a conclusion that the state legislature did not intend for it to be preempted by the Compensation Act’s exclusivity provisions. Noting that it is aware of the consequences the legislature intended as a result of BIPA violations, the Illinois Supreme Court wrote that the “General Assembly has tried to head off such problems before they occur by imposing safeguards to ensure that the individuals’ privacy rights in their biometric identifiers and biometric information are properly protected before they can be compromised and by subjecting private entities who fail to follow the statute’s requirements to substantial potential liability . . . whether or not actual damages, beyond violation of the law’s provisions, can be shown.” Moreover, if a “different balance should be struck under [BIPA] given the category of injury,” that is “a question more appropriately addressed to the legislature.”

    Privacy/Cyber Risk & Data Security Courts State Issues Illinois BIPA Appellate

  • District Court finalizes BIPA class action settlement

    Privacy, Cyber Risk & Data Security

    On January 24, the U.S. District Court for the Northern District of Illinois granted final approval to a nearly $877,000 class action settlement to resolve allegations that a food manufacturer’s fingerprint-based timekeeping system violated Illinois’ Biometric Information Privacy Act (BIPA). Class members (both direct employees and temporary staffing workers who worked for the defendant between June 2015 and the date of preliminary approval) alleged that the defendant (i) collected biometric fingerprint identifiers and information without receiving informed written consent from employees; (ii) processed these identifiers and information “without establishing and following a publicly available data retention schedule and destruction policy”; and (iii) disclosed the employees’ identifiers and information to its timekeeping vendor without consent. The defendant contended that since 2020 it has maintained BIPA consents and compliance policies, and “does not retain any finger scan data for separated Illinois employees.” While denying all liability and wrongdoing, the defendant has agreed to pay $876,750 to cover class member payments, attorney fees and costs, settlement administrator costs, and the class representative’s service award.

    Privacy/Cyber Risk & Data Security BIPA Class Action State Issues Courts Settlement Illinois

  • District Court grants preliminary approval in TCPA settlement


    On November 23, the U.S. District Court for the Northern District of Illinois granted preliminary approval of a class action settlement, resolving allegations that a publishing company utilized a third party telemarketer to place newspaper delivery service advertising calls with individuals who had previously requested not to be contacted. According to the plaintiff’s unopposed motion for preliminary approval of class action settlement, the defendant, through a third-party telemarketer, sent repeated and unsolicited telemarketing calls after the plaintiff terminated his relationship with the defendant and asked not to be called. The plaintiff alleged that the defendant violated the TCPA by sending telemarketing calls to him and others, despite their phone numbers’ registration with the National Do Not Call Registry, as well as for violations of the TCPA’s internal do-not-call rules. According to the plaintiff’s motion, the settlement (if approved) would establish a settlement class of 28,412 individuals who were solicited by the defendant’s telemarketing vendor between December 11, 2017 and April 15, 2021. The settlement would provide that all class members with an identifiable address, who do not opt out, receive a distribution from the $1.7 million settlement fund, which after attorneys’ fees and costs, is estimated to be nearly $30 per person, according to the motion.

    Courts Illinois Class Action TCPA Settlement Privacy/Cyber Risk & Data Security

  • Illinois AG, IDFPR settle with three payday lenders

    State Issues

    On November 5, the Illinois attorney general and the Illinois Department of Financial and Professional Regulation (IDFPR) announced a settlement resolving allegations that three companies violated Illinois lending laws by generating payday loan leads without a license and arranging high-cost payday loans for out-of-state payday unlicensed lenders. The AG and IDFPR further alleged that the companies falsely represented their loan network as being “trustworthy,” although the loan terms and conditions did not comply with Illinois law, which violated the Illinois’ Consumer Fraud and Deceptive Business Practices Act. The AG sued the companies in 2014 after the companies refused to comply with a cease and desist order issued by IDFPR, which required them to become licensed. According to the announcement, under the terms of the settlement, the companies are prohibited from: (i) arranging or offering small-dollar loans, online or otherwise, without being licensed by IDFPR; (ii) advertising or offering any small consumer loan arrangements or lead generation services in Illinois, unless they are licensed by IDFPR; and (iii) providing services associated with arranging or offering small dollar loans to Illinois consumers without being licensed by IDFPR.

    State Issues Licensing Illinois Payday Lending State Attorney General State Regulators Consumer Finance

  • Illinois enacts the Protecting Household Privacy Act

    Privacy, Cyber Risk & Data Security

    Earlier this year, the Illinois governor signed HB 2553 to create the Protecting Household Privacy Act. Among other things, the act specifies when state law enforcement agencies may acquire and use data from household electronic devices. The act defines “household electronic data” as information or input provided by a person to a household electronic device that is capable of facilitating electronic communications. (A “household electronic device” excludes personal computing devices and digital gateway devices.) The act generally prohibits law enforcement agencies from obtaining household electronic data “or direct[ing] the acquisition of household electronic data from a private third party.” Exceptions to this prohibition include when a law enforcement agency first obtains a warrant, an emergency situation arises, or the owner of the household electronic device lawfully consents to the acquisition of the data. The act also states that it shall not “be construed to require a person or entity to provide household electronic data to a law enforcement agency,” except as provided under certain provisions outlined in Section 15. The act further requires entities disclosing household electronic data to “take reasonable measures to ensure the confidentiality, integrity, and security of any household electronic data during transmission to any law enforcement agency, and to limit any production of household electronic data to information responsive to the law enforcement agency request.” Additionally, the act outlines information retention limits, which provide, among other things, that if a law enforcement agency obtains household electronic data and does not file criminal charges, it must destroy the data within 60 days unless subject to certain circumstances. The act is effective January 1, 2022.

    Privacy/Cyber Risk & Data Security State Issues State Legislation Illinois Consumer Protection Enforcement

  • District Court grants preliminary approval in BIPA settlement


    On November 4, the U.S. District Court for the Northern District of Illinois granted preliminary approval of a class action settlement resolving claims that a plasma donation center (defendant) unlawfully collected and stored the fingerprints of blood plasma donors. According to the memorandum of law in support of the plaintiff’s motion for preliminary approval, the plaintiff filed the proposed class action in 2019, alleging the defendant violated the Illinois Biometric Information Privacy Act (BIPA) by collecting thousands of fingerprints through a finger-scanning donor identification system without providing proper disclosures or obtaining informed written consent. The plaintiff further alleged that the defendant required her (and thousands of Illinois blood plasma donors) to provide a fingerprint to donate plasma, which was later used for identification on subsequent visits. The plaintiff alleged that by not requiring her informed consent and by disclosing her information to a third party, the defendant’s practice violated BIPA. According to the plaintiff’s motion, the settlement (if approved) would establish a settlement class of 76,826 Illinois blood plasma donors who were required to scan their finger at the defendant’s Illinois facilities prior to donating plasma. The settlement would provide payouts of approximately $400 to $800 per class member, assuming a claims rate of 10 percent to 20 percent, and permit class counsel to file for up to 35 percent of the settlement fund for attorney fees.

    Courts Class Action BIPA State Issues Illinois Privacy/Cyber Risk & Data Security Settlement

  • District Court approves CCPA class action settlement


    On October 27, the U.S. District Court for the Northern District of Illinois granted preliminary approval of a class action settlement resolving claims against an Illinois-based insurance provider and its subsidiary (collectively, defendants) for allegedly failing to adequately protect plaintiffs’ personal and private information when defendants were the targets of security breach incidents where an unauthorized user’s access to the defendants’ network and computer systems resulted in unauthorized access of personal, private information (PII). According to the memorandum of law in support of the plaintiffs’ motion for preliminary approval, the plaintiffs sued after learning that the defendants were targeted by hackers in December 2020, which affected over 5.8 million customers, and again in March 2021, which affected more than 324,000 customers. This conduct, the plaintiffs contended, violated the California Consumer Privacy Act, the California Consumers Legal Remedies Act, California’s Unfair Competition Law, and various state common laws. While the defendants denied allegations of wrongdoing and liability, and asserted defenses to the individual and class claims, the parties reached a proposed settlement, in which class members (defined as “all natural persons residing in the United States who were sent notice letters notifying them that their PII was compromised in the Data Incidents announced by Defendants on or about March 16, 2021 and on or about May 25, 2021”) will be provided automatic access to 18 months of credit monitoring and financial account protection. Additionally, every class member can make a claim for up to $10,000 in reimbursement for out-of-pocket losses. The preliminarily approved settlement also provides for class counsel fees and expenses not to exceed roughly $2.5 million and class representative service awards of $1,500.

    Courts Class Action Illinois Data Breach CCPA Privacy/Cyber Risk & Data Security State Issues California

  • District Court denies defendant’s motion to dismiss Illinois BIPA class action


    On October 28, the U.S. District Court for the Northern District of Illinois denied a Delaware-based technology management service defendant’s motion to dismiss a putative class action that alleged it stored and collected biometric data from employees of companies that utilized the defendant’s timekeeping services. The court also granted the plaintiff’s motion to remand two of her three claims to state court because the plaintiff had not alleged an injury in fact sufficient to establish Article III standing in federal court for those claims.

    The plaintiff alleged that the defendant violated the Illinois’ Biometric Information Privacy Act (BIPA) by selling time and attendance solutions to Illinois employers, including biometric-enabled hardware such as fingerprint and facial recognition scanners that collected and stored employee biometrics data. The plaintiff alleged that the defendant violated Section 15(a) of BIPA by failing to publish a retention schedule for the biometric data, violated Section 15(b) of BIPA by obtaining the plaintiff’s biometric data without first providing written disclosures and obtaining written consent, and violated section 15(c) of BIPA, by participating in the dissemination of her biometric data among servers. According to the district court, the plaintiff lacked standing regarding the Section 15(a) claim because the harm resulting from the defendant’s failure to publish a retention policy was not sufficiently particularized and the plaintiff had not otherwise alleged a concrete injury resulting from the violation. The district court concluded that the plaintiff’s Section 15(c) claim also lacked standing because, though she alleged that the defendant profits off its biometric data collection practices by marketing its biometric time clocks that utilize the software as “superior options” and “gains a competitive advantage”, the “complaint doesn't allege an injury in fact stemming from [the defendant’s] profiting off of [the plaintiff’s] biometric data.”

    With regard to the Section 15(b) claim, the district court rejected the defendant’s argument that the requirement to inform clients regarding its biometric data collection and receiving written consent did not apply, noting that the defendant is right that it “doesn’t penalize mere possession of biometric information.” However, that does not help the defendant “because the complaint alleges that defendant did more than possess [the plaintiff’s] biometric information: it says that [the defendant] collected and obtained it.” Additionally, the district court rejected the defendant’s argument that it is not liable as a third-party vendor who lacks the power to obtain the required written releases from its clients’ employees. The district court stated that “while it’s probably true that [the defendant] wasn’t in a position to impose a condition of employment on its clients’ employees, the statutory definition of a written waiver doesn’t excuse vendors like [the defendant] from securing their own waivers before obtaining a person’s data.”

    Courts BIPA Illinois Data Collection / Aggregation Class Action Privacy/Cyber Risk & Data Security State Issues


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