Class Action Lawsuit Filed Against a Major Retail Pharmacy Chain for Alleged BIPA Violations

In a recently filed class action lawsuit, the country’s second largest retail pharmacy chain Walgreens was accused of violating the provisions of the Illinois Biometric Information Privacy Act (BIPA).

The lawsuit contends that Walgreens did not disclose to customers that scans of their facial geometry were being collected and stored, and failed to obtain their written consent to collect, store and use the biometrics.  Walgreens allegedly used the biometric data to track, identify and prosecute shoplifters and allegedly shared it with the “third parties.”

BIPA requires companies to inform data subject that biometric data is collected and to obtain their written consent before collecting biometric information.  Companies may not disclose biometric information unless they obtain data subject’s consent or the disclosure is required for certain enumerated purposes, such as to complete a financial transaction or to comply with a subpoena.  BIPA also prohibits private entities from selling, leasing, trading, or otherwise profiting from biometric information.

BIPA provides for a private right of action which entitles successful plaintiffs to recover up to $1,000 in statutory damages for negligent violations and up to $5,000 in statutory damages for intentional or reckless violations.

In the last two years, over 200 class actions were filed in state and federal courts for alleged violations of individuals’ biometric privacy rights under BIPA, including recent cases against Home Depot, Kroger, and Illinois casino operators.  The increase in litigation was instigated by the Illinois Supreme Court’s decision which held that a failure to comply with the BIPA requirements subjects companies to statutory damages even if plaintiff cannot show actual harm, such as monetary loss.  Similarly, at least two circuit courts of appeals concluded that plaintiffs may sue in federal court for purely technical BIPA violations, such as failure to provide written disclosures or obtain written releases.

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