October 26, 2020

Volume X, Number 300


October 26, 2020

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BIPA Claims Against United Airlines Must be Arbitrated Due to Collective Bargaining Agreement

Last month a federal district court dismissed a putative class action lawsuit against United Airlines challenging its use of fingerprint scanning timeclocks. The lawsuit brought by United employee David Johnson alleged that the company’s collection and use of employees’ fingerprints violated the Illinois Biometric Information Privacy Act (BIPA) because the company failed to get the requisite consent from its employees for fingerprint collection and use.

In dismissing the lawsuit, the court found it lacked federal jurisdiction to resolve the dispute on two grounds. In the first instance, the court observed that the federal Railway Labor Act (RLA) creates a mandatory and exclusive arbitration process for resolving labor disputes that require interpretation of a collective bargaining agreement (CBA). The CBA between United and its employees gave United the “sole and exclusive right to manage, operate, and maintain the efficiency” of the workplace. Therefore, any resolution of Plaintiff’s challenge under BIPA of United’s collection and use of fingerprints as part of its timekeeping technology necessarily requires interpretation of the scope of the CBA. And, thus, “[b]ecause there is no way for the Plaintiff to pursue a BIPA claim without interpreting the existing CBA,” the court concluded that its resolution of Plaintiff’s BIPA claim was preempted by the RLA’s mandatory arbitration requirement, and that the court lacked jurisdiction to decide the claim.

In the second instance, echoing two other recent federal BIPA cases, the court concluded that violation of BIPA’s notice and consent requirement alone is not adequate injury to establish standing to sue in federal court under Article III of the U.S. Constitution. The court found that a lack of consent, while a technical violation of the statute, does not itself alone increase the risk of disclosure that could result in injury or harm to the individual. Absent any actual compromise of the biometric information, or an increased risk of such compromise, there was no injury-in-fact, and thus no federal jurisdiction. While the court’s ruling in this regard continues the trend of other federal courts, it’s worth noting that standing to sue in Illinois state court is unaffected by these decisions. Whether a plaintiff or class action may succeed in state court based upon a mere technical violation of BIPA’s requirements—without more—remains an open question the Illinois Supreme Court is expected to answer in its next session.

Putting it Into Practice: Companies negotiating collective bargaining agreements should be aware that the right language may allow for resolution of many labor disputes, including disputes arising under BIPA, through mandatory arbitration rather than through the courts. When collecting and using biometric information, companies should continue to pay attention to BIPA’s requirements regarding consent, notice, and disclosure because although federal courts have dismissed suits predicated only on mere technical violations of the statute, other avenues of recourse may still be available to plaintiffs in state court and via arbitration.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VIII, Number 248



About this Author

Kari Rollins Intellectual Property Lawyer Sheppard

Kari M. Rollins is a partner in the Intellectual Property Practice Group in the firm's New York office.

Areas of Practice

Ms. Rollins focuses her practice on privacy and complex commercial litigation matters. She has successfully represented clients in the financial services, audit and accounting, food services, retail, and fashion industries before state and federal courts, as well as in front of state attorneys general, federal regulators, and U.S. and international commercial arbitration forums....

Shanna Pearce, Sheppard Mullin, San Diego, litigation, class action, intellectual property, IP, copyrights, false advertising, commercial litigation, lanham act, unfair competition

Ms. Pearce represents businesses in the areas of intellectual property and commercial litigation, from trademark and copyright matters to consumer class actions. She has represented Fortune 500 companies in complex actions involving allegations of copyright violation, breach of contract, fraud, and unfair business practices. She has also defended retailers and financial institutions in class actions alleging violations of statute and federal laws relating to false advertising, unfair competition, pricing practices, and lending disclosures. Ms. Pearce’s litigation experience ranges from pre-suit strategy and advice to post-trial proceedings, with a special focus on appellate issues. She also has significant experience in private domestic and international arbitrations.

Ms. Pearce co-chairs the Bench-Bar Committee of Lawyers Club of San Diego, and is an active member of both the San Diego County Bar Association Appellate Section and the San Diego Appellate Inn of Court. She is a member of Sheppard Mullin’s own Pro Bono Committee and coordinates pro bono training and case placement in the Del Mar office. Ms. Pearce’s pro bono practice focuses on asylum and other immigration matters for victims of persecution, torture, and domestic violence.