Once again, we find ourselves reviewing a pertinent decision regarding the Illinois Biometric Information Privacy Act (“BIPA”).  For our new readers, BIPA regulates the sale and storage of “biometric information”.  In 2008, when the legislature enacted it, BIPA was acknowledged as forward thinking.  Since then, it has consistently raised novel issues in litigation.  A recent case revisits an issue that we have discussed before: whether certain federal statutes may preempt BIPA.  In this case, ultimately, the court was unable to reach the issue at the earliest pleading stage.  Read on to learn more.

In Fleury v. Union Pac. R.R. Co., No. 20-cv-00390, 2021 U.S. Dist. LEXIS 55766 (N.D. Ill. Mar. 24, 2021), the court denied a motion to dismiss a truck driver’s lawsuit primarily on the basis that two federal statutes, the Federal Railroad Safety Act (“FRSA”) and the Interstate Commerce Commission Termination Act (“ICCTA”), preempted BIPA.  The plaintiff, a truck driver, alleged that he was required to “scan” his biometric information when he visited the defendant’s facilities.

An understanding of both statutes is crucial to understanding the court’s ruling.  In short, the federal statutes generally state that “rules” or “regulations” developed by states that address a subject matter governed by federal regulations regarding railroad safety and security should be preempted.  In its motion, the defendant offered two main arguments in support of its motion to dismiss.  First, both statutes precluded BIPA claims.  Second, consent obtained from the plaintiff after the lawsuit was filed was retroactive.  The court rejected both arguments as premature and denied the motion.

First, the defendant argued that its compliance with a Homeland Security program that touched on biometric triggered FRSA preemption.  The court found that it was premature to evaluate whether the defendant’s participation with the program triggered FRSA preemption.  The court also noted that this argument depended on an assumption that the FRSA would recognize the program as a “regulation” for preemption purposes, which was not argued in the pleadings.  The court also questioned whether BIPA covered the same “subject matter” as the FRSA.

Additionally, the defendant argued that the ICCTA per se and/or categorically preempted BIPA.  The court noted there was a “dearth of facts currently in the record,” which would make “any determination by the Court as to what impact BIPA would have” on the defendant’s operations “highly speculative.”  The court determined that the defendant failed to show how BIPA was either per se or categorically preempted.  Specifically, the court questioned whether BIPA regulated rail transportation.  Ultimately, however, the court noted there was a “dearth of facts currently in the record,” which would make “any determination by the Court as to what impact BIPA would have” on the defendant’s operations “highly speculative.”

Finally, the court determined that dismissal on the basis of a retroactive consent would be premature at the earliest pleading stage.  After filing the lawsuit, the plaintiff consented to the collection, storage, and sharing of his biometric information.  Upon review of the consent form, the court noted it did not address prior collection of biometric information.  The court determined that dismissal on this issue was not appropriate at the time, but, upon initial review, the plaintiff’s consent “may ultimately limit the damages” he could recover or “possibly bar his [BIPA] claim altogether”.

For more, stay tuned.  CPW will be there.