In July, Instagram’s parent company Meta Platforms, Inc. (“Meta”) agreed to a $68.5 million class-action biometric privacy settlement in connection with the company’s alleged violation of Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (BIPA).
Statutes permitting discretionary attorney fee-shifting for prevailing defendants vary in the circumstances under which fee-shifting is permitted. Two recent cases tackling the question of why and when a lawsuit warrants shifting attorneys’ fees from a prevailing defendant to the plaintiff who brought the claim reflect some of these differences. One case focused on “frivolousness” of the lawsuit, and the other imposed a “bad faith” requirement—despite the absence of such language from the relevant statute. The perceived motivation of the respective plaintiffs and purpose behind the statutes under which the claims were brought were influential.
Class action lawsuits accusing companies of violating the Illinois Biometric Information Privacy Act (“BIPA”) have more than doubled following a February 2023 ruling by the Illinois Supreme Court, which found, based on a plain reading of the statute, a separate claim accrues each time a person’s biometric identifier is scanned in violation of the statute.
Earlier this year, we reported on the potential breeding ground for litigation under Illinois’ Biometric Information Privacy Act (“BIPA”). A recent decision from an Illinois state appellate panel on the different limitations periods that apply to BIPA provides guidance for companies faced with a BIPA lawsuit and the arguments they can make on a motion to dismiss.