Old Dominion Moves to Dismiss BIPA Class Action or Strike Class Allegations

Plaintiffs' claims against Old Dominion Freight Line should be dismissed for unripe claims, failure to state claims under the Illinois Biometric Information Privacy Act (BIPA) and failure to state a claim for lack of subject-matter jurisdiction in their class action against the company, said defendants' Friday motion (docket 1:23-cv-02187) in U.S. District Court for Central Illinois in Peoria. Old Dominion moved the court to either dismiss plaintiffs’ second amended putative class action complaint or to strike their class allegations.

Plaintiff John Kararo sued Old Dominion in April, saying the company’s Kronos time clock system required employees to scan, upload and use their fingerprints for its time clock and tracking hours worked. The company used and stored Kararo's unique biometric identifiers, without prior consent, in violation of BIPA (see 2304070049), the complaint alleges. Plaintiffs Sean Walker, Tri Minh La and Melvyn Caison were added to the class action in a second amended complaint in May.

Last month, Old Dominion moved to stay the case pending the Illinois Supreme Court’s decision on the petition for rehearing filed in Cothron v. White Castle System. In that BIPA class action, a divided Illinois Supreme Court ruled a separate claim under BIPA accrues each time an entity scans or transmits an individual’s biometric identifier or biometric information. Early this month, U.S. District Judge for Northern Illinois Jorge Alonso denied Old Dominion’s motion to stay proceedings (see 2306060045).

Old Dominion asserts plaintiffs’ claims should be dismissed because they fail to plead the amount in controversy required to establish diversity jurisdiction or jurisdiction under the Class Action Fairness Act, and their claims under Section 15(a) of BIPA aren't ripe. Their claims for statutory liquidated damages should be stricken because they failed to plead that the company’s alleged BIPA violations were negligent, reckless or intentional, the motion said.

Plaintiffs’ claim that Old Dominion lacks a privacy policy is belied by its “publicly-available" privacy policy, said the motion. Their Section 15(a) claim that Old Dominion was in possession of their biometric identifiers isn't plausibly pled, the company said, and their claim for violation of Section 15(b) fails because their “own allegations establish they both expressly and impliedly consented to using the timekeeping system at issue,” it said.

The court should grant judgment on the pleadings as to plaintiff Melvyn Caison’s claims because “he failed to disclose them in bankruptcy proceedings and is judicially estopped from pursuing them here,” the motion said. Plaintiffs' claims are also barred by the laches doctrine because their delay in raising their claims prior to filing the complaint “was unreasonable and prejudicial,” it said.

In the event the court doesn’t dismiss all of plaintiffs’ claims, it should dismiss the putative class claims or strike those allegations because plaintiffs can’t satisfy requirements of Federal Rule of Civil Procedure 23, the motion said. The complaint proposes an “overbroad” putative class comprising all current and former employees of the company who had their biometric information collected, it said. The proposed class will likely include former employees whose claims are barred by the five-year statute of limitations, the motion said.

Factual inquiries specific to each class member will be necessary and will prevent plaintiffs from meeting the requirements of commonality and typicality, said the motion. Even if plaintiffs can establish the existence of common questions across the putative class, they can’t establish, “as a result of their own pleading, that those common questions predominate as required by Rule 23(b)(3),” it said: “The number of individual issues will predominate over any common questions of law and fact.”