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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Business Law



BIPA Claims May Be Heard In Federal Court

BIPA Claims May Be Heard In Federal Court

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In a recent decision, the Seventh Circuit Court of Appeals held that a federal district court could hear certain Biometric Information Privacy Act (BIPA) claims. An issue in many BIPA lawsuits specifically, and in many data privacy lawsuits generally, is whether the court has subject matter jurisdiction to hear the case. The issue is usually raised by defendants seeking to dismiss the case; however, in Bryant v. Compass Group USA, Inc. (https://law.justia.com/cases/federal/appellate-courts/ca7/20-1443/20-1443-2020-05-05.html), the Plaintiff claimed that she lacked Article III standing and sought to have the case remanded to state court.

In Bryant, Plaintiff Christine Bryant’s employer installed vending machines owned and operated by Defendant Compass Group. Rather than accept cash, employees had to establish an account using their fingerprint to purchase food from the vending machines. During her orientation, Plaintiff and her co-workers scanned their fingerprints into the vending machine’s system to establish a payment link and create a user account. Bryant claimed that the process of collecting and retaining her fingerprint, and the fingerprints of her co-workers, violated Sections 15(a) and (b) of Illinois’ BIPA. Section 15(a) requires collectors of biometric information make public a retention schedule and guidelines for permanently destroying the biometric information, while Section 15(b) requires that collectors of biometric information obtain informed written consent before biometric information is obtained. Subsequently, Bryant brought a putative class action against Compass in the Circuit Court of Cook County alleging violations of these sections of BIPA.

Compass removed the action to federal court and Bryant moved to remand the action to state court claiming that the district court did not have subject matter jurisdiction because she lacked the concrete injury-in-fact necessary to satisfy the federal requirement for Article III standing. The district court agreed, finding that Compass’s alleged BIPA violations were bare procedural violations that caused no concrete harm to Bryant, and remanded the action to state court.

The Seventh Circuit’s decision reversed the district court, finding that the case was properly removed to federal court. For a plaintiff to have Article III standing, 1) they must have suffered an actual or imminent, concrete and particularized injury-in-fact, 2) there must be a causal connection between the injury and the conduct complained of, and 3) there must be a likelihood that this injury will be redressed by a favorable decision. Only the first prong of this test was at issue in Bryant. In informational injury cases, an injury inflicted by nondisclosure is concrete if the plaintiff establishes that the withholding impaired her ability to use the information in a way the statute envisioned. The Court held that Compass withheld substantive information to which Bryant was entitled and therefore deprived her of the ability to give the informed consent required by Section 15(b). Conversely, the Court held that Bryant had not suffered a concrete and particularized injury as a result of the Section 15(a) violation as this duty to disclose was owed to the public generally and not part of the informed-consent regime.

The Bryant decision provides litigants with the opportunity to decide the most advantageous forum to litigate BIPA claims, as both state and federal court are now available. However, the best strategy continues to be that a collector of biometric information should formulate a plan to comply with BIPA’s requirements prior to the collection of that information. If you have questions regarding litigation or compliance under Illinois’ Biometric Information Privacy Act, or questions regarding privacy and data security generally, contact Tim Hayes at tmhayes@mckenna-law.com


Categories Business Law Data Privacy Employment Law General Litigation Privacy and Data Security Litigation


Businesses Face Criminal Penalties Yet Gain Protection Under Illinois Mask Rules

Businesses Face Criminal Penalties Yet Gain Protection Under Illinois Mask Rules

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On August 11, 2020, Illinois Governor. J.B. Pritzker was successful in a second attempt to criminalize business owners who fail to enforce his mask rules. Under Illinois’ new mask rule, local police and prosecutors may impose criminal fines up to $2,500 to enforce his emergency mask order.


Categories Business Law Business Services COVID19 Employment Law General Litigation Insurance Coverage


Employers Can Be Fined $2,500 For Failure To Enforce Mask Rules

Employers Can Be Fined $2,500 For Failure To Enforce Mask Rules

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On August 11, 2020, Illinois Governor. J.B. Pritzker was successful in a second attempt to criminalize business owners who fail to enforce his mask rules. Under Illinois’ new mask rule, local police and prosecutors may impose criminal fines up to $2,500 to enforce his emergency mask order.


Categories Business Law Business Services COVID19 Employment Law General Litigation


Discharge And The Fresh Start: What Does It All Mean?

Discharge And The Fresh Start: What Does It All Mean?

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The fourth blog in a four part series about filing for a Chapter 7 or 13 bankruptcy.
By Sara E. Cook

A discharge of most debts will be granted if you meet the requirements under the Bankruptcy Code and no one is objecting to the overall discharge, or the discharge of a specific debt. It happens at different times in each chapter and under different circumstances.


Categories Bankruptcy Services General Litigation


Maintaining a Drug-Free Workplace after Illinois Legalized Marijuana

Maintaining a Drug-Free Workplace after Illinois Legalized Marijuana

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The Illinois Cannabis Regulation and Tax Act (“Cannabis Act”) legalized the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020. The Cannabis Act allows Illinois residents at least 21 years old to possess up to 30 grams of marijuana flower and 5 grams of marijuana concentrate for personal use.


Categories Business Law Employment Law General Litigation Legal Updates


Petition Date And Post Petition: What Happens Now?

Petition Date And Post Petition: What Happens Now?

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The third blog in a four part series about filing for a Chapter 7 or 13 bankruptcy.
By Sara E. Cook

By the time you file the Petition, the Petition Date, you have elected one of two possible Chapters under the Bankruptcy Code, either Chapter 7 or 13. By filing the Petition, under either chapter, you have caused an Automatic Stay to be put in place that requires that all creditors stop contacting you or trying to collect while your case is pending. This gives you relief from these actions while the Court considers your petition under either chapter and decides what relief is proper for you. Creditors who do not honor the Automatic Stay, even if they were unaware of it, will be required to stop contact immediately and participate in the bankruptcy proceeding instead.


Categories Bankruptcy Services General Litigation


Deciphering Minimum Wage In Illinois Is Not An Easy Task

Deciphering Minimum Wage In Illinois Is Not An Easy Task

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By now, most Illinois employers know that the minimum wage in Illinois has gone up. Governor JB Pritzker signed legislation providing a path to an Illinois minimum wage of $15.00 by 2025.

As of July 1, 2020, Illinois’ minimum wage is $10 per hour but there are exceptions and nuances to the law and some jurisdiction have a higher minimum wage.


Categories Employment Law General Litigation Legal Updates


You Need To File Bankruptcy: What Do You Take To The Lawyer And What Will Happen At The Attorney Consultations

You Need To File Bankruptcy: What Do You Take To The Lawyer And What Will Happen At The Attorney Consultations

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The second blog in a four part series about filing for a Chapter 7 or 13 bankruptcy.
By Sara E. Cook

Having made the decision to file for bankruptcy, known as seeking protection from creditors, you need to work with your attorney to get the case prepared for filing. The filing that you will make is called a Petition in Bankruptcy, and the date you file is the Petition Date. This is the crucial date separating your pre bankruptcy life, from the post-petition phase where you can enjoy the relief from debt and your “fresh start.”


Categories Bankruptcy Services General Litigation


COVID-19, Job Loss, Too Many Bills: Is Bankruptcy The Solution For You?

COVID-19, Job Loss, Too Many Bills: Is Bankruptcy The Solution For You?

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The first blog in a four part series about filing for a Chapter 7 or 13 bankruptcy.
By Sara E. Cook

Often when a large corporation files for bankruptcy, you will hear that it is the right business decision, it gives them a chance to right size, change direction, get rid of unprofitable businesses and on and on. There is no stigma, it is just another business decision, and often heralded as the right one. Individuals, however, often see an individual bankruptcy as a sign of their failure or inadequacy. They avoid even entertaining the idea for fear of the stigma, the perceived shame and guilt for not paying bills. But the very same conditions that afflict large corporations, afflict individuals and families trying to survive in a world of low pay, pandemic, high child care costs, medical bills, furloughs and on and on. For all the same reasons bankruptcy makes sense for a big business, it may make sense for an individual or family and it should not be a shameful or guilt filled decision.


Categories Bankruptcy Services COVID19 General Litigation


Employers Should Have a COVID-19-Return-to-Work Plan Before Reopening

Employers Should Have a COVID-19-Return-to-Work Plan Before Reopening

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As more states loosen the COVID-19 Shelter in Place laws and people begin to return to previously sheltered business, it is essential that businesses have a plan for how that return to work will look and, equally important, convey relevant portions of the plan to its employees.

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Categories COVID19 Employment Law General Litigation Health Care Law Insurance Coverage Legal Updates


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