This week, the Supreme Court of the United States agreed to hear an appeal concerning the definition of “consumer” under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710; long one of the most frequently litigated privacy laws. If the Court affirms the lower court’s decision, it will defeat yet another attempt by the plaintiff’s bar to penalize companies who host audio visual content on their websites.Continue Reading Supreme Court Agrees to Resolve VPPA Circuit Split
One of the most significantly litigated areas of privacy law is biometric privacy. Tools that collect biometric information and biometric identifiers—including facial geometries, fingerprint scans, and voiceprints—are increasingly common for businesses across industries. Unfortunately, such tools in recent years have become focuses of the plaintiffs’ bar.
2025 saw continued developments in litigation under Illinois’ Biometric Information Privacy Act (BIPA), one of the first and most important biometric privacy laws in the country, as well as other, lesser-litigated biometric laws. Squire Patton Boggs’ globally ranked “Elite” Data Disputes team is well experienced defending businesses and their data practices, including in the realm of biometric privacy, in both litigation and arbitration, including mass arbitration. See also https://www. privacyworld.blog/2025/12/2025-mass-arbitration-year-in-review/
In this article, informed by our practical experience litigating and arbitrating biometric cases, we: (I) provide a brief primer on BIPA and then take a look at some highlights of the 2025 biometric privacy litigation space, including (II) class action and mass arbitration activity under BIPA, (III) key questions regarding defenses to BIPA claims on appeal at the Seventh Circuit, (IV) a decision contrasting BIPA with New York City’s biometric regime, (V) developments under other biometric laws enforced by attorneys general, and (VI) the intersection of AI and biometric privacy laws.Continue Reading 2025 Year-In-Review: Biometric Privacy Litigation
Earlier this fall, the United States Court of Appeals for the Second Circuit undermined a strategy often used by the plaintiff’s bar in privacy claims: the threat of mass arbitration fees. In a decision reversing the district court, the Second Circuit held that the petitioners cannot use the Federal Arbitration Act (FAA) to compel arbitration
Actual spam calls have become a pervasive annoyance. On the other hand, text messages delivering information about exclusive sales and discounts are surely not if you have signed up for such messages. But what about if those coveted discount code text messages are received late at night or early in the morning? That’s the question being raised in a flurry of class action complaints filed by the same Florida-based law firm.
Key Takeaways
While these claims are sorted out, we recommend that businesses who send marketing messages ensure that such marketing messages are sent between the hours of 8:00 am and 9:00 pm based on the call recipient’s location. How do you determine the call recipient’s location for cell phones? A defensible position is using the call recipient’s area code to determine the caller’s location, although this is not a fool-proof method as people travel to different time zones with their cell phones. However, using the area code to assess location gives the business a defensible position, for now, as the plaintiffs in these recent class actions claim that they live in the area associated with their telephone’s area code. That defense may still be subject to challenge, though. In the alternative, businesses could obtain prior express written consent to receive marketing messages throughout the day, although from the plain reading of the Telephone Consumer Protection Act (“TCPA”), this should not be required.Continue Reading New Class Action Threat: TCPA Quiet Hours and Marketing Messages
Last week, the Illinois House of Representatives joined the Illinois Senate in passing amendments to the state’s Biometric Information Privacy Act (“BIPA”) to limit the scope of possible damages for violations of BIPA. As covered extensively here on PW, last year in Cothron v. White Castle, the Illinois Supreme Court held that an individual person accrues a separate statutory claim each time a defendant collects or discloses the individual’s biometric information in violation of BIPA. While the dissent in Cothron accurately observed that the combination of statutory damages and “per-scan” accrual meant that businesses could face “punitive, crippling liability . . . wildly exceeding any remotely reasonable estimate of harm,” the Cothron majority determined that “concerns about potentially excessive damage awards under the Act are best addressed by the legislature.”Continue Reading Illinois Legislature to Amend BIPA to Overrule Illinois Supreme Court Damages Decision
On March 22, the Western District of Washington granted a motion to remand cases removed from state court in In re Fred Hutchinson Data Security Litigation, 2:23-cv-01893-JHC, 2024 WL 1240681 (W.D. Wash. March 22, 2024). In doing so, it highlighted for litigators and companies alike a lesson in the importance of understanding how courts determine citizenship when determining diversity jurisdiction under the Class Action Fairness Act (“CAFA”).Continue Reading Relying on CAFA’s Discretionary “Home-State” Exception, Federal Court Punts Data Breach Class Action Back to State Court
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