May 29, 2024 • 43 mins
Data Privacy Attorney, John Ochoa, joins the show to discuss a recent lawsuit of a beverage giant under Illinois Genetic Privacy Law, and a Texas judge says drag shows aren’t always protected by First Amendment, citing the “history and tradition” test, as the legal standard for his ruling.
- (00:00) - Intro
- (01:12) - Beverage giant sued under Illinois Genetic Privacy Law
- (28:46) - Justices using the controversial “history and tradition” test, as a legal standard in their rulings
- (42:45) - Outro
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jack Sanker (00:05):
Welcome to litigation nation. I'm your
host, Jack Sanker, along withDanessa Watkins. As a reminder,
this is the show where werecount the most important and
interesting legal stories of thepast couple of weeks. Danessa,
what are we gonna talk abouttoday?
Danessa Watkins (00:19):
A beverage giant was recently sued under
Illinois' genetic privacy law.So we're gonna discuss the
allegations of that case, andwe'll hear from one of our
partners, John Ochoa, who isboth litigated and published on
the topics of privacy rightswith regards to biometric and
genetic data.
Jack Sanker (00:36):
And we're gonna be talking about a really
interesting write up in the NewYork Times on the newer legal
standard that's being applied tocertain constitutional
challenges by the Supreme Court.It's the history and tradition
standard that's being deployedfirst by the Supreme Court and
now by some of the lower federaldistrict courts, and what that
(00:57):
might mean for some of theupcoming challenges on some
landmark rules and regulationsin the next couple of of years
here. All that and more, here'swhat you need to
Danessa Watkins (01:13):
know. Alright. So Great Lakes Coca Cola
Distribution LLC and Raya'sHoldings LLC, which is one of
the largest food and beverageproducers and distributors in
the US, have been sued inIllinois state court for alleged
violations of Illinois' geneticinformation privacy act. This
(01:34):
class action was filed by aproposed group of job applicants
claiming that their geneticprivacy rights were violated
when they were required tosubmit to physical exams and
provide a family medical historyas a condition of their
employment. So just kind of insummary, and we'll get more into
this during the show, but theGenetic Privacy Act bestows a
right to privacy in a person'sgenetic information and a right
(01:57):
to prevent the solicitation,collection, and disclosure of
such information.
So as alleged in this recentlyfiled complaint, quote, genetic
information, including familialhealth history, is a uniquely
private and sensitive form ofpersonal information. The
genetic information containedtherein reveals a trove of
intimate information about thatperson's health, family, and
(02:20):
innate characteristics. Inrequiring prospective employees,
such as the plaintiff, todisclose their family medical
histories, defendants haveviolated plaintiff's and the
other putative class members'statutory end quote. So the lead
plaintiff in this case, AntonioPenaloza, he applied for a job
(02:40):
as a maintenance mechanic inRaya's facility in Niles,
Illinois. And then as part ofthe application process,
Panaloza was required to undergoa physical exam and answer
questions regarding themanifestation of diseases or
disorders in his family members.
So, for example, whether he hadany family members with a
history of heart disease,diabetes, other medical
(03:03):
conditions. Now I know that I'veseen, and I'm sure we've all
seen these type of standardquestions on medical forms.
However, the issue here is thatproviding this information was
part of the hiring process and acondition of the employment. So
as alleged, Panaloza would nothave even been considered for
that job unless he disclosedthis sensitive information about
(03:24):
his family's geneticinformation. The class of
plaintiffs here are individualswho had applied for employment
with Reyes and, similarly, wererequired to disclose this
private information and data inorder to be hired.
So in this case, the plaintiffsare seeking injunctive relief as
well as the following, which isexpressly provided for under the
(03:48):
genetic privacy act. Statutorydamages of $15,000 for each
reckless or intentionalviolation of the act. Statutory
damages of $25100 for eachnegligent violation, and then
reasonable attorney's fees,costs, and other litigation
expenses. So, I mean, generallyspeaking, I think we can all
(04:10):
agree that the advancements inbiological science and genetic
mapping have had a significantbeneficial impact on modern
medicine, but there's also beena whole host of privacy issues
that have attached to thesetechnologies. And these debates
on scientific advancement versusrights to privacy, they've been
swirling for decades.
(04:31):
So, when I was doing a littleresearch, I found that as early
as 1996, the Center For DiseaseControl expressed concerns about
people's rights to security andprivacy in their genetic
makeups. And then 2 years laterin 1998 is when the Illinois
General Assembly enacted theGenetic Privacy Act. They
recognized in part that people'sgenetic information could
(04:52):
potentially be used as a sourceof discrimination. So Illinois
was actually somewhat ahead ofthe game in passing this
legislation, because it wasn'tuntil 10 years later that
Congress enacted the GeneticInformation Nondiscrimination
Act of 2,008. So this was thethe federal framework for
(05:12):
prohibiting discrimination onthe basis of genetic information
with respect to health insuranceand employment.
So despite the fact that thislaw has been on the books in
Illinois for 25 years, it wasn'tuntil recently that plaintiffs
began using the genetic privacyact as a basis for their claims.
So to dive a little deeper intothis subject, we're excited to
(05:33):
have our partner, John Ochoa, onthe show to help educate us
more. John, thanks so much forjoining us. Let us know a little
bit about your practice here atUmenson Davis.
John Ochoa (05:45):
Hi, Danessa. Thanks for having me. So I'm a member
of the, cybersecurity and dataprivacy service group here at
Amundson Davis. In thatcapacity, I advise clients on,
best practices and legalrequirements for privacy
disclosures and, help them withregulation and guidance
regarding privacy and cybersecurity. We also help clients
(06:09):
with data privacy laws,particularly those that govern
data collection, storage, andsharing of sensitive private
information that includes,biometric and genetic data.
I'm also on the, class actionlitigation team here, which
litigates, consumer and privacyclass actions.
Danessa Watkins (06:28):
Excellent. So you are the perfect guest to to
talk about, these crazy newcases under the genetic privacy
act. So, let's jump right in. Itseems like the floodgates are
officially open here with thesecivil actions. Can you give us a
little bit more background aboutthe purpose of the Genetic
(06:48):
Privacy Act and who or what itwas intended to protect?
John Ochoa (06:53):
Sure. So the genetic privacy act is a fairly
comprehensive statute. It's muchlonger than, the biometric
privacy act. The statuteregulates not just, employers
actions, but also otherindustries, including the
insurance industry. And the lawhas 2 main components.
(07:14):
The first deals with theprotection and sharing of one's
genetic information. Basically,this means that if someone or
some company collects yourgenetic information, they can't
share it with anyone elsewithout your written consent.
The second portion of thestatute is a nondiscrimination,
(07:36):
aspect. And that basically meansthat one's genetic information
cannot be the basis of hiring orfiring decisions, demotions, or
other, negative outcomes in theworkplace. The statute has, many
requirements specific toemployers.
Danessa Watkins (07:54):
Okay. And does I'm I'm sure it does, but, of
course, you know, our wewouldn't have jobs unless we
litigated the terms of statute.But does does the statute
provide a fairly comprehensiveexplanation of what genetic
information is?
John Ochoa (08:09):
It does. And the definition in the statute is
fairly broad. The geneticprivacy act borrows the
definition of geneticinformation from federal HIPAA
statute. And it defines geneticinformation as information
pertaining to an individual'sgenetic test, the genetic test
of family members of thatindividual, the manifestation of
(08:31):
a disease or disorder in familymembers of such individual, or
any request for receipt ofgenetic services or
participation in clinicalresearch, which includes genetic
services by the individual orany family member. So, the
definition has many sub parts.
It's quite broad. Specifically,the provision concerning the
(08:54):
manifestation of disease ordisorder in family members,
could potentially encompass awide variety of information. I
heard you mention this whendiscussing the Reyes case
earlier. For instance, if asibling or parent suffered from
heart disease or diabetes, thiscould potentially be considered
genetic information under thestatute. And I I say potentially
(09:15):
because the full scope of thesedefinitions, has not yet been
litigated in Illinois courts.
So we we can't say withcertainty right now whether that
definition, is what courts wouldadopt or whether these
complaints have merit when theysay that, you know, someone's,
information about a familymember is being collected during
(09:37):
the hiring process.
Danessa Watkins (09:38):
That yeah. That makes sense. So is it it it
seems like you're saying thatthis this statute, isn't we
haven't seen it be litigatedthat much until recently. Is
that right?
John Ochoa (09:52):
That's right. The statute was passed in 1998, and
Illinois was really on on thecutting edge when it enacted the
statute, but it sat dormant forover 20 years after it was
passed. And we've only seen, awave of filing of these cases in
the last 12 to 18 months or so.
Danessa Watkins (10:12):
Okay. So we probably haven't even really
seen any appeals yet. It's it'sstill at the trial court level
for the most part.
John Ochoa (10:18):
That's correct. There haven't been any cases
that have been litigated throughtrial on the merits yet. There
have been a few earlier cases,involving the genetic privacy
act. Some of them were, databreach cases involving Illinois
healthcare companies. There wasone case brought related to the,
(10:40):
asset purchase of a company thatdealt with consumers genetic
information, but lawsuits likethe Reyes case were only seeing
pop up recently.
Jack Sanker (10:48):
What are the, the damages that the plaintiff's
entitled to?
John Ochoa (10:51):
Sure. The damages under, the genetic privacy act
are are pretty high, andthey're, 2,500 per violation for
negligent violations and $15,000for intentional or willful
violations. Plus the plaintiff'scounsel can collect their
attorney's fees plus be awardedinjunctive relief.
Jack Sanker (11:15):
That seems comparable to the biometrics
act.
John Ochoa (11:17):
Yes. It is. They're actually a bit higher. Under
BIPA, the damages are a 1,000for negligent violations and
5,000 per intentional violation.
Danessa Watkins (11:29):
So in the Reyes case then, I mean, obviously, it
just got filed and they probablydon't even know the size of the
class yet. But let's say therewere a 100 class members. If
there was a finding of recklessor intentional violation of the
act by the employer, then thatcould be $15,000 per, per
(11:52):
litigant?
John Ochoa (11:53):
That's right.
Danessa Watkins (11:54):
Wow. That's pretty steep.
John Ochoa (11:56):
It is. And, you know, that's obviously the
deterrent effect of the statute.That's why they enacted it in
that way, and that's probablywhy Illinois enacted, the
biometric privacy law in thatway is to discourage these types
of practices.
Danessa Watkins (12:11):
Yeah. So I know that you're you're certainly
well versed in Illinois'Biometric Information Privacy
Act or BIPA as we love to callit. Can you give us just a kind
of a comparison of of BIPAversus this genetic privacy act?
Like, are are they similar? Or Imean, we know the damages differ
(12:31):
a little bit, but they seem tohave kind of the same aim.
John Ochoa (12:35):
Yes. I mean, they're they're similar in the sense
that they're protectinginformation about individuals
that wasn't always traditionallyseen as protected under the law.
And I think that is coming aboutbecause of the advances in
technology that, you know, havenow allowed people to have their
(12:57):
biometrics recorded. You know,you use your biometrics when you
open up your phone, either aface face scan or fingerprint.
And now in the last 10 years orso, employers are using
thumbprints and hand handprintsfor, you know, punching in and
punching out rather than using atime card.
So, you know, the the technologyis is catching up, and, you
(13:20):
know, Illinois was sort of aheadof the pack when it came to
passing laws protecting thistype of information. I think,
you know, genetic information isis somewhat similar in that, you
know, 20 years ago, it was avery, you know, new emerging
type of field. Now it's becomingmore common, you know, with
services like 23 and me orancestry.com. People are are
(13:43):
getting more interested in, youknow, their genetic makeup and,
you know, maybe becoming morecomfortable in in sharing that
with other people. So, you know,Illinois again saw the the
potential risks of thatinformation falling into the
wrong hands or being misused orstored improperly.
And that's where I think, thegenetic privacy that comes in.
Danessa Watkins (14:04):
Yeah. That makes sense because even BIPO
was passed, I I believe, in2008. But like the genetic
privacy act, it really satdormant for a number of years
before the plaintiff's counselstarted seeing, hey, maybe we
can bring some claims underthis.
John Ochoa (14:21):
Yeah. Absolutely. I I think the use of fingerprint
scanners by employers for forpunching in and punching out
largely drove, BIPA intobecoming the the statute that it
is, where, you know, companiesare still being sued on a
regular basis. It helps that thestatute has a 5 year statute of
(14:41):
limitations. So, plaintiff'sattorneys and their clients can
look back 5 years in the past tofind violations.
So even if a company had, youknow, updated their disclosures
and we're doing things the rightway for the past 3 years, they
could still get hit with these,BIPA lawsuits.
Danessa Watkins (14:57):
Is it do you know the is the statute of
limitations the same for agenetic privacy act?
John Ochoa (15:02):
That is not yet known. That that's one of the
many that's one of the manyquestions that will probably
need to be answered by Illinoiscourts. And and this is,
something that happened with theBiometric Privacy Act, and I see
it happening with the geneticprivacy act act also, is that
there are a lot of unansweredquestions about, you know, for
instance, what's the definitionof genetic information? What is
(15:24):
the statute of limitations? Howhigh should damages be under the
statute.
You know, all the same questionsthat have now been answered for
the biometric privacy act willhave to be answered for the
genetic privacy act also.
Danessa Watkins (15:36):
Got it. Yeah. I did see, a couple rulings came
down last year under BIPA. TheNorthern District of Illinois
found that the statutory damagesunder BIPA were discretionary
rather than fixed in amount. Andthe Supreme Court, it looks like
in a split decision 4 to 3 inCawthorn versus White Castle
(16:00):
system, They found that, a claimunder BIPA may accrue each time
a private entity collects ordiscloses biometric identifiers,
so that's like fingerprints orretina scans, without informed
consent as opposed to accruingonly with the first collection
of disclosure.
So in other words, if you havean employee that's using a
(16:23):
fingerprint to clock in and outover the course of a year, every
single violation could be a fineof as much as $5,000. Is that
right?
John Ochoa (16:31):
That that's right. And, you know, the the courts
have kind of given thrown a boneto plaintiff's attorneys and
defense, on BIPA. On the onehand, every every scan could be
a violation, but on the otherhand, damages are discretionary
up to a 1,000 or $5,000. So a,jury in deciding damages could
(16:53):
decide to award damages muchlower than $1,000 per violation.
We we saw this somewhat play outin a case brought against
Burlington Northern Santa Feunder BIPA where they took the
case to trial and lost, and thejudge awarded approximately
$220,000,000 in damages.
(17:13):
After the Illinois Supreme Courtsaid the damages were
discretionary, the judge in thatcase ordered a retrial on the
issue of only damages, puttingputting the issue at in the the
question in the hands of thejury rather than the judge.
Before that jury trial happened,the party settled the case for
much lower than 220,000,000.They settled the case for around
(17:35):
$70,000,000, which came out toapproximately $1,000 per class
member, which coincidentally iswhat we're seeing a lot of these
cases settling at now. So Ithink, we we can see take that
as a sign that somewhat of a winfor the defense bar that, you
know, they're they're a littlenervous that a jury may not
(17:56):
decide to impose annihilatingdamages on a company for these
sorts of violations.
Danessa Watkins (18:01):
Yeah. I I mean, I'm sure that once these
lawsuits started being filed, itprobably came as a real shock to
a number of employers. And I'mjust curious. Has there been any
action by the legislature to tryto maybe push back? I mean,
these these statutes wereenacted early, maybe before the
(18:24):
legislature even knew how theywere gonna be used.
So has has this flood oflitigation caused them to pull
back at all?
John Ochoa (18:32):
It has. There's a bill working its way through the
Illinois legislature right nowthat would take the per
violation damages away from thegenetic I'm sorry, the biometric
privacy act. And instead onlyallow plaintiff to recover
damages for the first violation.So in the example we had of a
(18:54):
employee clocking in andclocking out multiple times a
day, only the first time thatthat employee used the finger
scanner would have violationaccrue. And there there couldn't
be recovery of additionaldamages for subsequent scams.
That that law seems to havepretty broad, support amongst
the Democrats. Republicansoppose the bill thinking it
(19:17):
doesn't go far enough, and theywant to see more of the
protections of the the rolledback. But, you know, given given
the support on on the Democraticside, I expect that the bill
will pass. With one one keyquestion being whether or not
the bill will have a retroactiveeffect for employers facing,
(19:38):
biometric privacy at claimsright now.
Danessa Watkins (19:40):
So do you expect that the genetic
information act and the thelawsuits that are being filed
under that are gonna kind offollow this similar trajectory
of we need to first figure outwhat is the scope of this act
and what are the definitions,like you said, the statute of
limitations. And then maybe oncethere's been enough rulings on
(20:03):
those basic issues, perhaps thelegislature will take another
look at, you know, whetherthey've gone too far again.
John Ochoa (20:08):
Mhmm. I think it will. I think the first main
question will be exactly what isgenetic information. And because
that that question could make ahuge difference in whether
these, you know, pre employmentscreening cases have legs or
not.
Danessa Watkins (20:26):
Mhmm.
John Ochoa (20:26):
If if a court takes a broad definition that asking
someone about, you know, theirfather's heart disease or
diabetes is genetic information,that could potentially open the
floodgates for many more ofthese types of claims. If, on
the other hand, a court takes anarrower view and says that, you
know, only diseases or disordersrelating to someone's genetics
(20:51):
is genetic information. Well,that that would dramatically
narrow the amount of diseases orconditions that could be
considered genetic informationand, you know, probably put an
end to a lot of these lawsuits.
Danessa Watkins (21:03):
So I guess it's it's sort of a wait and see on
how things develop over the next12 to 18 months. Not that I
wanna provide this type ofpublicity, but this seems to be
one of those attractive, youknow, niche areas for
plaintiff's firms right now tojump on, especially with the
liquidated damages and feeshifting.
John Ochoa (21:24):
Yeah. It does. It it has all the same, you know,
hallmarks that the, BiometricPrivacy Act does. It has large
statutory damages as feeshifting, pretty broad
definitions, and, it has a lotof requirements that, you know,
more than, you know, an averagecompany would know about or even
(21:45):
have on their radar right now.So I think it could catch a lot
of companies unaware.
You know, and if the courtsdecide that it has a 4 or 5 year
statute of limitations, youknow, that that's a lot of
exposure hanging out there.
Jack Sanker (21:58):
I think maybe, noting by the litigation at
least, it was the by thelitigation that shut down,
Facebook's facial recognitionprogram, and I know that they
paid out pretty significantsettlement on that. The
financial penalties that havebeen assessed under similar
(22:18):
statutory schemes have been inthe tens to 100 of 1,000,000 of
dollars. So something like thishas that potential for, like, a
knockout type penalty.
John Ochoa (22:28):
The Facebook settlement, which many Illinois
residents are probably aware ofbecause they received a notice,
put together a pot of money of$650,000,000 approximately to to
pay out in claims for peoplewhose, you know, facial
recognition features were werecaptured, under Facebook's
tagging process. And if, a largeIllinois employer who for years
(22:54):
has been collecting, informationabout their employees, you know,
health histories of their familymembers is dinged under the
statute. We we can see the thesame type of damages. You know,
thus far under the biometricprivacy act, only one company
has decided to take it all theway through to trial, see what
(23:17):
happens, and that's BurlingtonNorthern. Most other companies,
virtually all of them willsettle the case prior to getting
to that point.
So another interesting thing towatch for under the genetic
privacy act is once we see thefirst settlements coming down
the pipeline, if we do. And ifwe do, what size are those
(23:39):
settlements? How much are theysettling per per class member?
The biometric privacy act waswas in flux for a little bit,
but now it's kind of settledinto this sort of $1,000 per,
class member band. And,obviously, there's there's some
differences in cases that mightchange that number, but
(24:00):
generally speaking, we'retalking about $1,000.
Since the damages under thegenetic privacy act are higher,
perhaps those might be more like2,000 or 3,000. On the other
side of it, the, violationsunder the the, genetic privacy
act maybe won't have the sametype of recurrence that they do
(24:23):
under the biometric privacy act.You know, going back again to an
employee's punching in andpunching out using their
fingerprint multiple times aday, the damages accrue very
quickly. Under, the geneticprivacy act, there may just be
one instance, you know, oneapplication, one, time that
someone's biometric informationis is collected in violation of
(24:45):
the statute. So that that mayalso put a damper on on the
amount of damage awarded in agenetic privacy act claim.
Danessa Watkins (24:53):
Yeah. And the genetic privacy act, I, you
know, I I certainly don't knowthe ins and outs of it like you
do, but it seems to be a littlebit more limited in that, as you
started off with those kinda 2buckets of where these claims
fall into. 1 being sharinginformation without written
consent, and then the otherbeing, discriminating against
(25:14):
someone based on their geneticinformation. So and and you may
not have the answer to this, butit would seem that if a company
is simply asking questions on aquestionnaire and doesn't share
that information or doesn't baseits hiring decisions on that
information, maybe there won'tbe a violation.
John Ochoa (25:33):
Yeah. So I I think, BIPA and the genetic privacy act
in some ways, the geneticprivacy act is narrower. In some
ways, it's broader. So thebiometric privacy act is
principally concerned with youcan't collect someone's
biometric data without firstgetting their written consent
(25:53):
and having a policy in place forhow long you're going to keep
that information and when youwill destroy it. So that's
that's a threshold for anyonecollecting genetic information.
I'm sorry, biometricinformation. And the, genetic
privacy act doesn't prohibit thecollection of genetic
information on its own. What itprohibits is requiring employees
(26:17):
to provide genetic informationas a condition of employment or
the application process. So,theoretically, someone could
could voluntarily provide thatinformation so long as the
employer made it clear that itwasn't a condition of
employment. That being said, youknow, you're you're walking into
(26:37):
a danger zone anytime you'reyou're dealing with that sort of
thing in the connection with, inconnection with employment
decisions or hiring or firing orpromotions, anything.
So I I would caution companiesto be very careful when they're
talking about something thatcould, be cons considered,
(26:57):
genetic information in thehiring process.
Danessa Watkins (27:00):
Yeah. For now, just apply that term as broadly
as possible to protect yourselfas seems to be the best, way to
proceed.
John Ochoa (27:10):
That that's what I would do, and, you know, not to
give legal advice out here onthe show. I I think it's fine
for an employer to find outwhether or not an employee would
be able to perform the tasksrequired for the job. So if the
job was in a warehouse thatrequired a lot of physical
activity, physical, you know,labor, it's fair for an employer
(27:32):
to find out whether that personis able to, you know, say, lift
heavy boxes or whether theymight have a condition that
would prevent them from doingso. I but that's different from
asking someone, you know, doesyour father have heart disease
or hypertension or, you know,because that gets to trying to
predict maybe whether thatemployee in the future may or
(27:53):
may not be able to perform thosetasks. And that's where you
start getting into trouble with,genetic information.
Danessa Watkins (28:01):
Very excited to see what happens with the
genetic privacy act. We'll alsokeep an eye on BIPA and this
bill that's with the legislatureright now. Certainly appreciate
your time and your insights.Just for our listeners, how can
they get in touch with you ifthey have further questions or,
(28:21):
if they're facing issues withthese acts that are still being,
you know, deciphered and andlitigated right now.
John Ochoa (28:28):
Thanks for having me, Danessa. It's, you can find
my profile on Ahmanson Davis'website at Ahmanson
ahmansondavislaw.com. You canreach me via email at, jochoa,
that's o c h o a, atahmansondavislaw.com.
Jack Sanker (28:49):
There's a really interesting opinion piece in New
York Times on the emerging legaltest that's being utilized first
by the, Supreme Court and now bysome of the lower courts to
decide constitutional questions.The piece starts with a summary
of a recent case in Texas from2022, where a student LGBTQ
(29:10):
advocacy group was planning toput on a drag show to raise
money for suicide prevention.And the rules around this show
were, in my opinion, somewhatreasonable. The kids under the
age of 18 can only come if theywere to accompanied by an adult.
For example, no unaccompaniedminors could come.
So, basically, the same rulesof, like, a rated r movie. But
(29:31):
the University of West Texas A&Mbanned the event from campus
calling it derisive, divisive,and demoralizing misogyny. The
group sued, arguing that thiswas an unconstitutional
viewpoint discrimination actunder the First Amendment. And
the piece goes on to note that,the Supreme Court has
(29:53):
historically protected speech onpublic university campuses, so
this seemed like a relativelystraightforward case and
probably an easy win for thestudent organization. However,
the case was assigned to a judgein Texas who has been at the
heart of several constitutionalrulings lately, and this is in
(30:13):
the Northern District of Texas,by the way.
And looking at his opinion, itit begins by immediately jumping
to and utilizing what's beendeemed the history and tradition
test. This test was formallyadopted by the Supreme Court in
the 20 20 2 case, the Bruincase. This was the, one of the
(30:36):
gun regulation rulings that theSupreme Court handed down in
2022. The Supreme Court appliedthat same reasoning in the Dobbs
case as well. It's the abortioncase.
When it found that abortion was,quote, not deeply rooted in the
nation's history and tradition.And that's that fact, according
(30:58):
to the court at least, was atleast somewhat dispositive as to
whether or not there was a rightto abortion that had existed
under Roe beforehand. Soutilizing this this history and
tradition test, the judge in theNorthern District Texas wrote,
quote, free speech jurisprudenceonly intermittently invokes the
(31:19):
historical analysis applied toother amendments and clauses. He
cites the Bruin case and a fewothers, explaining that the
establishment clausejurisprudence looks to history
for guidance. And then the courtgoes on, said historical
analysis reveals a free speechecosystem drastically different
from the expressive conductabsolutism of the plaintiff's
(31:42):
briefing, unquote.
So the student group loses. Nowback to the times piece. I'm
gonna quote from there. Quote,the flurry of history and
tradition opinions prompted anuproar among liberal court
watchers. What counted ashistorical or traditional?
The open ended nature of theterm seemed to invite a
(32:03):
freewheeling survey of 18th 19thcenturies. One commentator,
Joseph Furskin, a law professorat the University of California
Los Angeles, tweeted that it'sbasically a fancy way of saying
if men in power didn't recognizethis right as fundamental in ye
old times, we won't recognize itnow, un unquote. According to a
(32:25):
law review article by a Yale lawprofessor, Reva Siegel, the
court was playing, quote, memorygames. She asks, why does the
conservative majority appeal tohistory and tradition in exactly
those cases when it is changingthe law? The Times piece notes
this caused all sorts ofconfusion on the bench.
(32:45):
Judge Carlton Reeves, an Obamaappointee, pointed out that
judges were simply not trainedto sort through the competing
interpretations of history,Quoting from, judge Reeves,
quote, we are not experts inthat what white wealthy male
property owners thought aboutfirearm regulations in 17/91.
(33:08):
Now on the flip side, this newstandard gets rid of a lot of
the originalism standards thatconservative justices have been
using since 19 eighties becauseit really no longer asks what
the intention of the framers wasat the time that the document
was authored. Instead, it askswhether there was a history and
tradition of a given right ofprivilege in the years since the
(33:28):
document was written. JusticeAmy Coney Barrett actually noted
at one point that the historyand tradition test encourages
judges to hunt for historicalsources, which she said is like
looking over a crowd and pickingout one of your friends from the
crowd. So the piece goes on toargue against the ways the
history and tradition test isutilized, specifically taking
(33:51):
issues with how it was accordingto the author, but also
according to the AmericanHistorical Association and the
Organization of AmericanHistorians used to cherry pick
historical examples rather thanaccurately reflect the real
history of the United States, atleast in the Dobbs opinion.
But I wanna focus more on thejudge's qualifications for
(34:16):
determining whether there was ahistory or tradition of a
certain thing in the UnitedStates at a given point in time.
And and here's what I will hangmy hat on. I do think that
judges are bad historians. Ithink anytime you're reading a
Supreme Court opinion andthey're doing this kind of deep
dive on, you know, what wasgoing on at a given time in
American history, it's usually apretty pretty bad analysis. And
(34:39):
how do I know that?
Because every decision that theSupreme Court makes based on
history is usually met withuniversal, like, groans from
actual historians. There'salways complaints about how they
got it wrong one way or theother. And, really, you know,
when you think about it, I thinkit takes quite a bit of hubris
(34:59):
to declare yourself an expert inin a a field like this. I think
a lot a lot of people look athistory as, you know, soft
liberal arts, whatever. I don'treally think that's fair.
I I think it is more like a hardscience than people think. And
I'll go on the record heresaying that history is a hard
(35:21):
science. For example, to knowhow things were at a given point
in time, you do have tounderstand the language,
geography, the politics, theeconomics, the religion, the
customs that were prevalent atthat time. You have to know
where to find that data. Youhave to know how to evaluate the
trustworthiness of that data.
Often, the data is in adifferent language, so you need
(35:42):
to know how to read that and soon and so on. Now what I think
is interesting is, contrast thiswith the cases that, judges
often hear, you know, maybe inproducts cases or, intellectual
property. I mean, a judge wouldnever so flippantly declare in
their opinion that theythemselves are experts in, say,
(36:05):
chemistry or something likethat. In those scenarios,
they're going to listen toexpert testimony. When
considering history, the inputof actual historians, though, is
almost never given the level ofdeference that, like, a stem
expert would would be getting.
And that's kind of what reallybothers me about, this this new
(36:26):
emphasis at both the supremecourt and now in the federal
district courts on the quote,history and tradition test is
there's really no fact findingelement of the history and
tradition test. Like, I don'tknow. Imagine there's a bench
trial about whether a certain,you know, molecule either was or
was not radioactive. Right?Well, the judge is not gonna
(36:47):
just sit there and listen to thelawyer's arguments, you know,
one way or the other and takethem at their word and then
decide, you know, this thing isradioactive.
The judge is gonna hear experttestimony on facts and is gonna
rely on that. At the supremecourt level, but even at the
lower court levels, there'sreally nothing similar to that
when it comes to historicalexaminations. You know, the
litigants, you know, make theirarguments, which are meant to be
(37:09):
persuasive and, of course,emphasize the good facts while
minimizing the bad ones. Andthere are amicus briefs that are
filed, but as I mentioned,they're kinda mostly ignored
when they come from actualhistorians. Instead, the judges
kinda take on this mindset of,well, I can just read the
history books cited in thebriefs myself and decide what
happened in the 18 seventies onmy own.
And they really would never dothat in any other context. So as
(37:33):
the judges and the justices movemore towards this independent,
historical analysis that theyare going to be the ultimate
arbiter of, of, I think thedecisions are gonna be getting
further and further unmooredfrom actual historical reality
as I think mentioned in thispiece, The New York Times that
I'm looking at, but just broadlyand in in general. And if and if
(37:56):
you don't wanna take my word forit, take a look at some of the
amicus briefs that are filedanytime something like this is
before the Supreme Court, andyou'll note, the one sidedness
of any of the major associationsof history professors or
historians, typically don'tagree with whatever the majority
(38:16):
opinion is.
Danessa Watkins (38:18):
Yeah. So I'll admit that I have not read up on
this case, in preparation forthis show, but I have seen just
a slew of first amendment issuesand freedom of expression issues
coming out recently. Well a lotof them on college campuses
actually for different reasons.But, it so it seems like so this
(38:42):
opinion was saying that dragshows as a category has not been
historically viewed as aprotected expression. Was that
the ruling?
Jack Sanker (38:54):
Yes. And, that that not every type of speech at the
on the on college campus levelis broadly protected, which is
has, I think, broadly been theinterpretation of the law. That
only the types of speech andexpression that are, quote,
rooted in our, history andtradition are going to be
(39:18):
protected under the firstamendment, which is a
significant narrowing of of whatI understand to be, the law with
respect to, like, college speechand things like that.
Danessa Watkins (39:30):
Well, it's it's a scary narrowing because, it's
it sounds like a stifling ofideas. I mean, especially when
you think about the broaderpurpose of college life. You
know? It's to to discover and tolearn and, you know, find
yourself and, immerse yourselfin other ideas and cultures. And
(39:51):
so if we start saying, well,historically, this hasn't been
protected.
Aren't we silencing, you know,various levels of expression in
speech? Yeah. This I I'm hopingthey take a close look at this
at the appellate level. It seemslike there just seems to be this
push in a bunch of differentavenues and and circumstances to
(40:18):
try to equate drag in general,drag shows, with some sort of,
like, pornographic thing, asopposed to I think the argument
could be made that, it couldalso be a form of, you know,
like a like a a playwright.Like, you're you're putting on a
(40:40):
performance.
You're assuming a different,entity or personality. You know,
I don't know why. Well, I guessI can understand why, but I
don't agree with the shift totry and push it towards this
explicit, you know, area that,yes, of course, there are,
restrictions under the FirstAmendment when it comes to
(41:03):
obscenities and, you know, time,place restrictions, and content.
You know, we we limit contentbased on children and, you know,
the age of the audience. But,yeah, I just, the this seems
like just another push to try toput drag into this category
that, I mean, I would argue it'snot, or it's certainly not in
(41:25):
every circumstance.
So it definitely seemsoverinclusive. I mean, I did
read a quick article that justsaid and I don't know if it was
the judge that that made thisstatement, but, I think it might
have been, that it it wasn't somuch who the people were. So I
think he said if it was theChristian society that were
(41:47):
putting on a drag show, the theresult would be the same. So he
was trying to make it seem likehe's not, you know, upholding
this ban based on the fact thatI think it was LGBTQ community
that put it on. But I don't I Idon't think that matters either
way.
I mean, whoever's putting it on,it is an expression, in my
(42:09):
expert opinion. And, yeah, I andI also don't think that, you
know, this isn't at a elementaryschool. So, you're you're taking
care of that aspect of, youknow, the potential issues with
obscenity, but, again, I I thinkit's wrong to label this
categorically as an obscenity,And I wonder if those arguments
(42:33):
were made. Let's keep an eye onthis. I'm certainly interested,
to see how this plays out.
But, But, yeah, thanks forbringing it to our attention,
Jack. Alright. Well, that's ourshow for today. Thank you again
to John Ochoa. If, any of ourlisteners have follow-up
inquiries on BIPA or the geneticprivacy act, please reach out to
(42:56):
him.
As always, leave us comments,your thoughts on the show,
topics you want us to cover, andwe'll see you next time.
Welcome to litigation nation. I'm your
host, Jack Sanker, along withDanessa Watkins. As a reminder,
this is the show where werecount the most important and
interesting legal stories of thepast couple of weeks. Danessa,
what are we gonna talk abouttoday?
Danessa Watkins (00:19):
A beverage giant was recently sued under
Illinois' genetic privacy law.So we're gonna discuss the
allegations of that case, andwe'll hear from one of our
partners, John Ochoa, who isboth litigated and published on
the topics of privacy rightswith regards to biometric and
genetic data.
Jack Sanker (00:36):
And we're gonna be talking about a really
interesting write up in the NewYork Times on the newer legal
standard that's being applied tocertain constitutional
challenges by the Supreme Court.It's the history and tradition
standard that's being deployedfirst by the Supreme Court and
now by some of the lower federaldistrict courts, and what that
(00:57):
might mean for some of theupcoming challenges on some
landmark rules and regulationsin the next couple of of years
here. All that and more, here'swhat you need to
Danessa Watkins (01:13):
know. Alright. So Great Lakes Coca Cola
Distribution LLC and Raya'sHoldings LLC, which is one of
the largest food and beverageproducers and distributors in
the US, have been sued inIllinois state court for alleged
violations of Illinois' geneticinformation privacy act. This
(01:34):
class action was filed by aproposed group of job applicants
claiming that their geneticprivacy rights were violated
when they were required tosubmit to physical exams and
provide a family medical historyas a condition of their
employment. So just kind of insummary, and we'll get more into
this during the show, but theGenetic Privacy Act bestows a
right to privacy in a person'sgenetic information and a right
(01:57):
to prevent the solicitation,collection, and disclosure of
such information.
So as alleged in this recentlyfiled complaint, quote, genetic
information, including familialhealth history, is a uniquely
private and sensitive form ofpersonal information. The
genetic information containedtherein reveals a trove of
intimate information about thatperson's health, family, and
(02:20):
innate characteristics. Inrequiring prospective employees,
such as the plaintiff, todisclose their family medical
histories, defendants haveviolated plaintiff's and the
other putative class members'statutory end quote. So the lead
plaintiff in this case, AntonioPenaloza, he applied for a job
(02:40):
as a maintenance mechanic inRaya's facility in Niles,
Illinois. And then as part ofthe application process,
Panaloza was required to undergoa physical exam and answer
questions regarding themanifestation of diseases or
disorders in his family members.
So, for example, whether he hadany family members with a
history of heart disease,diabetes, other medical
(03:03):
conditions. Now I know that I'veseen, and I'm sure we've all
seen these type of standardquestions on medical forms.
However, the issue here is thatproviding this information was
part of the hiring process and acondition of the employment. So
as alleged, Panaloza would nothave even been considered for
that job unless he disclosedthis sensitive information about
(03:24):
his family's geneticinformation. The class of
plaintiffs here are individualswho had applied for employment
with Reyes and, similarly, wererequired to disclose this
private information and data inorder to be hired.
So in this case, the plaintiffsare seeking injunctive relief as
well as the following, which isexpressly provided for under the
(03:48):
genetic privacy act. Statutorydamages of $15,000 for each
reckless or intentionalviolation of the act. Statutory
damages of $25100 for eachnegligent violation, and then
reasonable attorney's fees,costs, and other litigation
expenses. So, I mean, generallyspeaking, I think we can all
(04:10):
agree that the advancements inbiological science and genetic
mapping have had a significantbeneficial impact on modern
medicine, but there's also beena whole host of privacy issues
that have attached to thesetechnologies. And these debates
on scientific advancement versusrights to privacy, they've been
swirling for decades.
(04:31):
So, when I was doing a littleresearch, I found that as early
as 1996, the Center For DiseaseControl expressed concerns about
people's rights to security andprivacy in their genetic
makeups. And then 2 years laterin 1998 is when the Illinois
General Assembly enacted theGenetic Privacy Act. They
recognized in part that people'sgenetic information could
(04:52):
potentially be used as a sourceof discrimination. So Illinois
was actually somewhat ahead ofthe game in passing this
legislation, because it wasn'tuntil 10 years later that
Congress enacted the GeneticInformation Nondiscrimination
Act of 2,008. So this was thethe federal framework for
(05:12):
prohibiting discrimination onthe basis of genetic information
with respect to health insuranceand employment.
So despite the fact that thislaw has been on the books in
Illinois for 25 years, it wasn'tuntil recently that plaintiffs
began using the genetic privacyact as a basis for their claims.
So to dive a little deeper intothis subject, we're excited to
(05:33):
have our partner, John Ochoa, onthe show to help educate us
more. John, thanks so much forjoining us. Let us know a little
bit about your practice here atUmenson Davis.
John Ochoa (05:45):
Hi, Danessa. Thanks for having me. So I'm a member
of the, cybersecurity and dataprivacy service group here at
Amundson Davis. In thatcapacity, I advise clients on,
best practices and legalrequirements for privacy
disclosures and, help them withregulation and guidance
regarding privacy and cybersecurity. We also help clients
(06:09):
with data privacy laws,particularly those that govern
data collection, storage, andsharing of sensitive private
information that includes,biometric and genetic data.
I'm also on the, class actionlitigation team here, which
litigates, consumer and privacyclass actions.
Danessa Watkins (06:28):
Excellent. So you are the perfect guest to to
talk about, these crazy newcases under the genetic privacy
act. So, let's jump right in. Itseems like the floodgates are
officially open here with thesecivil actions. Can you give us a
little bit more background aboutthe purpose of the Genetic
(06:48):
Privacy Act and who or what itwas intended to protect?
John Ochoa (06:53):
Sure. So the genetic privacy act is a fairly
comprehensive statute. It's muchlonger than, the biometric
privacy act. The statuteregulates not just, employers
actions, but also otherindustries, including the
insurance industry. And the lawhas 2 main components.
(07:14):
The first deals with theprotection and sharing of one's
genetic information. Basically,this means that if someone or
some company collects yourgenetic information, they can't
share it with anyone elsewithout your written consent.
The second portion of thestatute is a nondiscrimination,
(07:36):
aspect. And that basically meansthat one's genetic information
cannot be the basis of hiring orfiring decisions, demotions, or
other, negative outcomes in theworkplace. The statute has, many
requirements specific toemployers.
Danessa Watkins (07:54):
Okay. And does I'm I'm sure it does, but, of
course, you know, our wewouldn't have jobs unless we
litigated the terms of statute.But does does the statute
provide a fairly comprehensiveexplanation of what genetic
information is?
John Ochoa (08:09):
It does. And the definition in the statute is
fairly broad. The geneticprivacy act borrows the
definition of geneticinformation from federal HIPAA
statute. And it defines geneticinformation as information
pertaining to an individual'sgenetic test, the genetic test
of family members of thatindividual, the manifestation of
(08:31):
a disease or disorder in familymembers of such individual, or
any request for receipt ofgenetic services or
participation in clinicalresearch, which includes genetic
services by the individual orany family member. So, the
definition has many sub parts.
It's quite broad. Specifically,the provision concerning the
(08:54):
manifestation of disease ordisorder in family members,
could potentially encompass awide variety of information. I
heard you mention this whendiscussing the Reyes case
earlier. For instance, if asibling or parent suffered from
heart disease or diabetes, thiscould potentially be considered
genetic information under thestatute. And I I say potentially
(09:15):
because the full scope of thesedefinitions, has not yet been
litigated in Illinois courts.
So we we can't say withcertainty right now whether that
definition, is what courts wouldadopt or whether these
complaints have merit when theysay that, you know, someone's,
information about a familymember is being collected during
(09:37):
the hiring process.
Danessa Watkins (09:38):
That yeah. That makes sense. So is it it it
seems like you're saying thatthis this statute, isn't we
haven't seen it be litigatedthat much until recently. Is
that right?
John Ochoa (09:52):
That's right. The statute was passed in 1998, and
Illinois was really on on thecutting edge when it enacted the
statute, but it sat dormant forover 20 years after it was
passed. And we've only seen, awave of filing of these cases in
the last 12 to 18 months or so.
Danessa Watkins (10:12):
Okay. So we probably haven't even really
seen any appeals yet. It's it'sstill at the trial court level
for the most part.
John Ochoa (10:18):
That's correct. There haven't been any cases
that have been litigated throughtrial on the merits yet. There
have been a few earlier cases,involving the genetic privacy
act. Some of them were, databreach cases involving Illinois
healthcare companies. There wasone case brought related to the,
(10:40):
asset purchase of a company thatdealt with consumers genetic
information, but lawsuits likethe Reyes case were only seeing
pop up recently.
Jack Sanker (10:48):
What are the, the damages that the plaintiff's
entitled to?
John Ochoa (10:51):
Sure. The damages under, the genetic privacy act
are are pretty high, andthey're, 2,500 per violation for
negligent violations and $15,000for intentional or willful
violations. Plus the plaintiff'scounsel can collect their
attorney's fees plus be awardedinjunctive relief.
Jack Sanker (11:15):
That seems comparable to the biometrics
act.
John Ochoa (11:17):
Yes. It is. They're actually a bit higher. Under
BIPA, the damages are a 1,000for negligent violations and
5,000 per intentional violation.
Danessa Watkins (11:29):
So in the Reyes case then, I mean, obviously, it
just got filed and they probablydon't even know the size of the
class yet. But let's say therewere a 100 class members. If
there was a finding of recklessor intentional violation of the
act by the employer, then thatcould be $15,000 per, per
(11:52):
litigant?
John Ochoa (11:53):
That's right.
Danessa Watkins (11:54):
Wow. That's pretty steep.
John Ochoa (11:56):
It is. And, you know, that's obviously the
deterrent effect of the statute.That's why they enacted it in
that way, and that's probablywhy Illinois enacted, the
biometric privacy law in thatway is to discourage these types
of practices.
Danessa Watkins (12:11):
Yeah. So I know that you're you're certainly
well versed in Illinois'Biometric Information Privacy
Act or BIPA as we love to callit. Can you give us just a kind
of a comparison of of BIPAversus this genetic privacy act?
Like, are are they similar? Or Imean, we know the damages differ
(12:31):
a little bit, but they seem tohave kind of the same aim.
John Ochoa (12:35):
Yes. I mean, they're they're similar in the sense
that they're protectinginformation about individuals
that wasn't always traditionallyseen as protected under the law.
And I think that is coming aboutbecause of the advances in
technology that, you know, havenow allowed people to have their
(12:57):
biometrics recorded. You know,you use your biometrics when you
open up your phone, either aface face scan or fingerprint.
And now in the last 10 years orso, employers are using
thumbprints and hand handprintsfor, you know, punching in and
punching out rather than using atime card.
So, you know, the the technologyis is catching up, and, you
(13:20):
know, Illinois was sort of aheadof the pack when it came to
passing laws protecting thistype of information. I think,
you know, genetic information isis somewhat similar in that, you
know, 20 years ago, it was avery, you know, new emerging
type of field. Now it's becomingmore common, you know, with
services like 23 and me orancestry.com. People are are
(13:43):
getting more interested in, youknow, their genetic makeup and,
you know, maybe becoming morecomfortable in in sharing that
with other people. So, you know,Illinois again saw the the
potential risks of thatinformation falling into the
wrong hands or being misused orstored improperly.
And that's where I think, thegenetic privacy that comes in.
Danessa Watkins (14:04):
Yeah. That makes sense because even BIPO
was passed, I I believe, in2008. But like the genetic
privacy act, it really satdormant for a number of years
before the plaintiff's counselstarted seeing, hey, maybe we
can bring some claims underthis.
John Ochoa (14:21):
Yeah. Absolutely. I I think the use of fingerprint
scanners by employers for forpunching in and punching out
largely drove, BIPA intobecoming the the statute that it
is, where, you know, companiesare still being sued on a
regular basis. It helps that thestatute has a 5 year statute of
(14:41):
limitations. So, plaintiff'sattorneys and their clients can
look back 5 years in the past tofind violations.
So even if a company had, youknow, updated their disclosures
and we're doing things the rightway for the past 3 years, they
could still get hit with these,BIPA lawsuits.
Danessa Watkins (14:57):
Is it do you know the is the statute of
limitations the same for agenetic privacy act?
John Ochoa (15:02):
That is not yet known. That that's one of the
many that's one of the manyquestions that will probably
need to be answered by Illinoiscourts. And and this is,
something that happened with theBiometric Privacy Act, and I see
it happening with the geneticprivacy act act also, is that
there are a lot of unansweredquestions about, you know, for
instance, what's the definitionof genetic information? What is
(15:24):
the statute of limitations? Howhigh should damages be under the
statute.
You know, all the same questionsthat have now been answered for
the biometric privacy act willhave to be answered for the
genetic privacy act also.
Danessa Watkins (15:36):
Got it. Yeah. I did see, a couple rulings came
down last year under BIPA. TheNorthern District of Illinois
found that the statutory damagesunder BIPA were discretionary
rather than fixed in amount. Andthe Supreme Court, it looks like
in a split decision 4 to 3 inCawthorn versus White Castle
(16:00):
system, They found that, a claimunder BIPA may accrue each time
a private entity collects ordiscloses biometric identifiers,
so that's like fingerprints orretina scans, without informed
consent as opposed to accruingonly with the first collection
of disclosure.
So in other words, if you havean employee that's using a
(16:23):
fingerprint to clock in and outover the course of a year, every
single violation could be a fineof as much as $5,000. Is that
right?
John Ochoa (16:31):
That that's right. And, you know, the the courts
have kind of given thrown a boneto plaintiff's attorneys and
defense, on BIPA. On the onehand, every every scan could be
a violation, but on the otherhand, damages are discretionary
up to a 1,000 or $5,000. So a,jury in deciding damages could
(16:53):
decide to award damages muchlower than $1,000 per violation.
We we saw this somewhat play outin a case brought against
Burlington Northern Santa Feunder BIPA where they took the
case to trial and lost, and thejudge awarded approximately
$220,000,000 in damages.
(17:13):
After the Illinois Supreme Courtsaid the damages were
discretionary, the judge in thatcase ordered a retrial on the
issue of only damages, puttingputting the issue at in the the
question in the hands of thejury rather than the judge.
Before that jury trial happened,the party settled the case for
much lower than 220,000,000.They settled the case for around
(17:35):
$70,000,000, which came out toapproximately $1,000 per class
member, which coincidentally iswhat we're seeing a lot of these
cases settling at now. So Ithink, we we can see take that
as a sign that somewhat of a winfor the defense bar that, you
know, they're they're a littlenervous that a jury may not
(17:56):
decide to impose annihilatingdamages on a company for these
sorts of violations.
Danessa Watkins (18:01):
Yeah. I I mean, I'm sure that once these
lawsuits started being filed, itprobably came as a real shock to
a number of employers. And I'mjust curious. Has there been any
action by the legislature to tryto maybe push back? I mean,
these these statutes wereenacted early, maybe before the
(18:24):
legislature even knew how theywere gonna be used.
So has has this flood oflitigation caused them to pull
back at all?
John Ochoa (18:32):
It has. There's a bill working its way through the
Illinois legislature right nowthat would take the per
violation damages away from thegenetic I'm sorry, the biometric
privacy act. And instead onlyallow plaintiff to recover
damages for the first violation.So in the example we had of a
(18:54):
employee clocking in andclocking out multiple times a
day, only the first time thatthat employee used the finger
scanner would have violationaccrue. And there there couldn't
be recovery of additionaldamages for subsequent scams.
That that law seems to havepretty broad, support amongst
the Democrats. Republicansoppose the bill thinking it
(19:17):
doesn't go far enough, and theywant to see more of the
protections of the the rolledback. But, you know, given given
the support on on the Democraticside, I expect that the bill
will pass. With one one keyquestion being whether or not
the bill will have a retroactiveeffect for employers facing,
(19:38):
biometric privacy at claimsright now.
Danessa Watkins (19:40):
So do you expect that the genetic
information act and the thelawsuits that are being filed
under that are gonna kind offollow this similar trajectory
of we need to first figure outwhat is the scope of this act
and what are the definitions,like you said, the statute of
limitations. And then maybe oncethere's been enough rulings on
(20:03):
those basic issues, perhaps thelegislature will take another
look at, you know, whetherthey've gone too far again.
John Ochoa (20:08):
Mhmm. I think it will. I think the first main
question will be exactly what isgenetic information. And because
that that question could make ahuge difference in whether
these, you know, pre employmentscreening cases have legs or
not.
Danessa Watkins (20:26):
Mhmm.
John Ochoa (20:26):
If if a court takes a broad definition that asking
someone about, you know, theirfather's heart disease or
diabetes is genetic information,that could potentially open the
floodgates for many more ofthese types of claims. If, on
the other hand, a court takes anarrower view and says that, you
know, only diseases or disordersrelating to someone's genetics
(20:51):
is genetic information. Well,that that would dramatically
narrow the amount of diseases orconditions that could be
considered genetic informationand, you know, probably put an
end to a lot of these lawsuits.
Danessa Watkins (21:03):
So I guess it's it's sort of a wait and see on
how things develop over the next12 to 18 months. Not that I
wanna provide this type ofpublicity, but this seems to be
one of those attractive, youknow, niche areas for
plaintiff's firms right now tojump on, especially with the
liquidated damages and feeshifting.
John Ochoa (21:24):
Yeah. It does. It it has all the same, you know,
hallmarks that the, BiometricPrivacy Act does. It has large
statutory damages as feeshifting, pretty broad
definitions, and, it has a lotof requirements that, you know,
more than, you know, an averagecompany would know about or even
(21:45):
have on their radar right now.So I think it could catch a lot
of companies unaware.
You know, and if the courtsdecide that it has a 4 or 5 year
statute of limitations, youknow, that that's a lot of
exposure hanging out there.
Jack Sanker (21:58):
I think maybe, noting by the litigation at
least, it was the by thelitigation that shut down,
Facebook's facial recognitionprogram, and I know that they
paid out pretty significantsettlement on that. The
financial penalties that havebeen assessed under similar
(22:18):
statutory schemes have been inthe tens to 100 of 1,000,000 of
dollars. So something like thishas that potential for, like, a
knockout type penalty.
John Ochoa (22:28):
The Facebook settlement, which many Illinois
residents are probably aware ofbecause they received a notice,
put together a pot of money of$650,000,000 approximately to to
pay out in claims for peoplewhose, you know, facial
recognition features were werecaptured, under Facebook's
tagging process. And if, a largeIllinois employer who for years
(22:54):
has been collecting, informationabout their employees, you know,
health histories of their familymembers is dinged under the
statute. We we can see the thesame type of damages. You know,
thus far under the biometricprivacy act, only one company
has decided to take it all theway through to trial, see what
(23:17):
happens, and that's BurlingtonNorthern. Most other companies,
virtually all of them willsettle the case prior to getting
to that point.
So another interesting thing towatch for under the genetic
privacy act is once we see thefirst settlements coming down
the pipeline, if we do. And ifwe do, what size are those
(23:39):
settlements? How much are theysettling per per class member?
The biometric privacy act waswas in flux for a little bit,
but now it's kind of settledinto this sort of $1,000 per,
class member band. And,obviously, there's there's some
differences in cases that mightchange that number, but
(24:00):
generally speaking, we'retalking about $1,000.
Since the damages under thegenetic privacy act are higher,
perhaps those might be more like2,000 or 3,000. On the other
side of it, the, violationsunder the the, genetic privacy
act maybe won't have the sametype of recurrence that they do
(24:23):
under the biometric privacy act.You know, going back again to an
employee's punching in andpunching out using their
fingerprint multiple times aday, the damages accrue very
quickly. Under, the geneticprivacy act, there may just be
one instance, you know, oneapplication, one, time that
someone's biometric informationis is collected in violation of
(24:45):
the statute. So that that mayalso put a damper on on the
amount of damage awarded in agenetic privacy act claim.
Danessa Watkins (24:53):
Yeah. And the genetic privacy act, I, you
know, I I certainly don't knowthe ins and outs of it like you
do, but it seems to be a littlebit more limited in that, as you
started off with those kinda 2buckets of where these claims
fall into. 1 being sharinginformation without written
consent, and then the otherbeing, discriminating against
(25:14):
someone based on their geneticinformation. So and and you may
not have the answer to this, butit would seem that if a company
is simply asking questions on aquestionnaire and doesn't share
that information or doesn't baseits hiring decisions on that
information, maybe there won'tbe a violation.
John Ochoa (25:33):
Yeah. So I I think, BIPA and the genetic privacy act
in some ways, the geneticprivacy act is narrower. In some
ways, it's broader. So thebiometric privacy act is
principally concerned with youcan't collect someone's
biometric data without firstgetting their written consent
(25:53):
and having a policy in place forhow long you're going to keep
that information and when youwill destroy it. So that's
that's a threshold for anyonecollecting genetic information.
I'm sorry, biometricinformation. And the, genetic
privacy act doesn't prohibit thecollection of genetic
information on its own. What itprohibits is requiring employees
(26:17):
to provide genetic informationas a condition of employment or
the application process. So,theoretically, someone could
could voluntarily provide thatinformation so long as the
employer made it clear that itwasn't a condition of
employment. That being said, youknow, you're you're walking into
(26:37):
a danger zone anytime you'reyou're dealing with that sort of
thing in the connection with, inconnection with employment
decisions or hiring or firing orpromotions, anything.
So I I would caution companiesto be very careful when they're
talking about something thatcould, be cons considered,
(26:57):
genetic information in thehiring process.
Danessa Watkins (27:00):
Yeah. For now, just apply that term as broadly
as possible to protect yourselfas seems to be the best, way to
proceed.
John Ochoa (27:10):
That that's what I would do, and, you know, not to
give legal advice out here onthe show. I I think it's fine
for an employer to find outwhether or not an employee would
be able to perform the tasksrequired for the job. So if the
job was in a warehouse thatrequired a lot of physical
activity, physical, you know,labor, it's fair for an employer
(27:32):
to find out whether that personis able to, you know, say, lift
heavy boxes or whether theymight have a condition that
would prevent them from doingso. I but that's different from
asking someone, you know, doesyour father have heart disease
or hypertension or, you know,because that gets to trying to
predict maybe whether thatemployee in the future may or
(27:53):
may not be able to perform thosetasks. And that's where you
start getting into trouble with,genetic information.
Danessa Watkins (28:01):
Very excited to see what happens with the
genetic privacy act. We'll alsokeep an eye on BIPA and this
bill that's with the legislatureright now. Certainly appreciate
your time and your insights.Just for our listeners, how can
they get in touch with you ifthey have further questions or,
(28:21):
if they're facing issues withthese acts that are still being,
you know, deciphered and andlitigated right now.
John Ochoa (28:28):
Thanks for having me, Danessa. It's, you can find
my profile on Ahmanson Davis'website at Ahmanson
ahmansondavislaw.com. You canreach me via email at, jochoa,
that's o c h o a, atahmansondavislaw.com.
Jack Sanker (28:49):
There's a really interesting opinion piece in New
York Times on the emerging legaltest that's being utilized first
by the, Supreme Court and now bysome of the lower courts to
decide constitutional questions.The piece starts with a summary
of a recent case in Texas from2022, where a student LGBTQ
(29:10):
advocacy group was planning toput on a drag show to raise
money for suicide prevention.And the rules around this show
were, in my opinion, somewhatreasonable. The kids under the
age of 18 can only come if theywere to accompanied by an adult.
For example, no unaccompaniedminors could come.
So, basically, the same rulesof, like, a rated r movie. But
(29:31):
the University of West Texas A&Mbanned the event from campus
calling it derisive, divisive,and demoralizing misogyny. The
group sued, arguing that thiswas an unconstitutional
viewpoint discrimination actunder the First Amendment. And
the piece goes on to note that,the Supreme Court has
(29:53):
historically protected speech onpublic university campuses, so
this seemed like a relativelystraightforward case and
probably an easy win for thestudent organization. However,
the case was assigned to a judgein Texas who has been at the
heart of several constitutionalrulings lately, and this is in
(30:13):
the Northern District of Texas,by the way.
And looking at his opinion, itit begins by immediately jumping
to and utilizing what's beendeemed the history and tradition
test. This test was formallyadopted by the Supreme Court in
the 20 20 2 case, the Bruincase. This was the, one of the
(30:36):
gun regulation rulings that theSupreme Court handed down in
2022. The Supreme Court appliedthat same reasoning in the Dobbs
case as well. It's the abortioncase.
When it found that abortion was,quote, not deeply rooted in the
nation's history and tradition.And that's that fact, according
(30:58):
to the court at least, was atleast somewhat dispositive as to
whether or not there was a rightto abortion that had existed
under Roe beforehand. Soutilizing this this history and
tradition test, the judge in theNorthern District Texas wrote,
quote, free speech jurisprudenceonly intermittently invokes the
(31:19):
historical analysis applied toother amendments and clauses. He
cites the Bruin case and a fewothers, explaining that the
establishment clausejurisprudence looks to history
for guidance. And then the courtgoes on, said historical
analysis reveals a free speechecosystem drastically different
from the expressive conductabsolutism of the plaintiff's
(31:42):
briefing, unquote.
So the student group loses. Nowback to the times piece. I'm
gonna quote from there. Quote,the flurry of history and
tradition opinions prompted anuproar among liberal court
watchers. What counted ashistorical or traditional?
The open ended nature of theterm seemed to invite a
(32:03):
freewheeling survey of 18th 19thcenturies. One commentator,
Joseph Furskin, a law professorat the University of California
Los Angeles, tweeted that it'sbasically a fancy way of saying
if men in power didn't recognizethis right as fundamental in ye
old times, we won't recognize itnow, un unquote. According to a
(32:25):
law review article by a Yale lawprofessor, Reva Siegel, the
court was playing, quote, memorygames. She asks, why does the
conservative majority appeal tohistory and tradition in exactly
those cases when it is changingthe law? The Times piece notes
this caused all sorts ofconfusion on the bench.
(32:45):
Judge Carlton Reeves, an Obamaappointee, pointed out that
judges were simply not trainedto sort through the competing
interpretations of history,Quoting from, judge Reeves,
quote, we are not experts inthat what white wealthy male
property owners thought aboutfirearm regulations in 17/91.
(33:08):
Now on the flip side, this newstandard gets rid of a lot of
the originalism standards thatconservative justices have been
using since 19 eighties becauseit really no longer asks what
the intention of the framers wasat the time that the document
was authored. Instead, it askswhether there was a history and
tradition of a given right ofprivilege in the years since the
(33:28):
document was written. JusticeAmy Coney Barrett actually noted
at one point that the historyand tradition test encourages
judges to hunt for historicalsources, which she said is like
looking over a crowd and pickingout one of your friends from the
crowd. So the piece goes on toargue against the ways the
history and tradition test isutilized, specifically taking
(33:51):
issues with how it was accordingto the author, but also
according to the AmericanHistorical Association and the
Organization of AmericanHistorians used to cherry pick
historical examples rather thanaccurately reflect the real
history of the United States, atleast in the Dobbs opinion.
But I wanna focus more on thejudge's qualifications for
(34:16):
determining whether there was ahistory or tradition of a
certain thing in the UnitedStates at a given point in time.
And and here's what I will hangmy hat on. I do think that
judges are bad historians. Ithink anytime you're reading a
Supreme Court opinion andthey're doing this kind of deep
dive on, you know, what wasgoing on at a given time in
American history, it's usually apretty pretty bad analysis. And
(34:39):
how do I know that?
Because every decision that theSupreme Court makes based on
history is usually met withuniversal, like, groans from
actual historians. There'salways complaints about how they
got it wrong one way or theother. And, really, you know,
when you think about it, I thinkit takes quite a bit of hubris
(34:59):
to declare yourself an expert inin a a field like this. I think
a lot a lot of people look athistory as, you know, soft
liberal arts, whatever. I don'treally think that's fair.
I I think it is more like a hardscience than people think. And
I'll go on the record heresaying that history is a hard
(35:21):
science. For example, to knowhow things were at a given point
in time, you do have tounderstand the language,
geography, the politics, theeconomics, the religion, the
customs that were prevalent atthat time. You have to know
where to find that data. Youhave to know how to evaluate the
trustworthiness of that data.
Often, the data is in adifferent language, so you need
(35:42):
to know how to read that and soon and so on. Now what I think
is interesting is, contrast thiswith the cases that, judges
often hear, you know, maybe inproducts cases or, intellectual
property. I mean, a judge wouldnever so flippantly declare in
their opinion that theythemselves are experts in, say,
(36:05):
chemistry or something likethat. In those scenarios,
they're going to listen toexpert testimony. When
considering history, the inputof actual historians, though, is
almost never given the level ofdeference that, like, a stem
expert would would be getting.
And that's kind of what reallybothers me about, this this new
(36:26):
emphasis at both the supremecourt and now in the federal
district courts on the quote,history and tradition test is
there's really no fact findingelement of the history and
tradition test. Like, I don'tknow. Imagine there's a bench
trial about whether a certain,you know, molecule either was or
was not radioactive. Right?Well, the judge is not gonna
(36:47):
just sit there and listen to thelawyer's arguments, you know,
one way or the other and takethem at their word and then
decide, you know, this thing isradioactive.
The judge is gonna hear experttestimony on facts and is gonna
rely on that. At the supremecourt level, but even at the
lower court levels, there'sreally nothing similar to that
when it comes to historicalexaminations. You know, the
litigants, you know, make theirarguments, which are meant to be
(37:09):
persuasive and, of course,emphasize the good facts while
minimizing the bad ones. Andthere are amicus briefs that are
filed, but as I mentioned,they're kinda mostly ignored
when they come from actualhistorians. Instead, the judges
kinda take on this mindset of,well, I can just read the
history books cited in thebriefs myself and decide what
happened in the 18 seventies onmy own.
And they really would never dothat in any other context. So as
(37:33):
the judges and the justices movemore towards this independent,
historical analysis that theyare going to be the ultimate
arbiter of, of, I think thedecisions are gonna be getting
further and further unmooredfrom actual historical reality
as I think mentioned in thispiece, The New York Times that
I'm looking at, but just broadlyand in in general. And if and if
(37:56):
you don't wanna take my word forit, take a look at some of the
amicus briefs that are filedanytime something like this is
before the Supreme Court, andyou'll note, the one sidedness
of any of the major associationsof history professors or
historians, typically don'tagree with whatever the majority
(38:16):
opinion is.
Danessa Watkins (38:18):
Yeah. So I'll admit that I have not read up on
this case, in preparation forthis show, but I have seen just
a slew of first amendment issuesand freedom of expression issues
coming out recently. Well a lotof them on college campuses
actually for different reasons.But, it so it seems like so this
(38:42):
opinion was saying that dragshows as a category has not been
historically viewed as aprotected expression. Was that
the ruling?
Jack Sanker (38:54):
Yes. And, that that not every type of speech at the
on the on college campus levelis broadly protected, which is
has, I think, broadly been theinterpretation of the law. That
only the types of speech andexpression that are, quote,
rooted in our, history andtradition are going to be
(39:18):
protected under the firstamendment, which is a
significant narrowing of of whatI understand to be, the law with
respect to, like, college speechand things like that.
Danessa Watkins (39:30):
Well, it's it's a scary narrowing because, it's
it sounds like a stifling ofideas. I mean, especially when
you think about the broaderpurpose of college life. You
know? It's to to discover and tolearn and, you know, find
yourself and, immerse yourselfin other ideas and cultures. And
(39:51):
so if we start saying, well,historically, this hasn't been
protected.
Aren't we silencing, you know,various levels of expression in
speech? Yeah. This I I'm hopingthey take a close look at this
at the appellate level. It seemslike there just seems to be this
push in a bunch of differentavenues and and circumstances to
(40:18):
try to equate drag in general,drag shows, with some sort of,
like, pornographic thing, asopposed to I think the argument
could be made that, it couldalso be a form of, you know,
like a like a a playwright.Like, you're you're putting on a
(40:40):
performance.
You're assuming a different,entity or personality. You know,
I don't know why. Well, I guessI can understand why, but I
don't agree with the shift totry and push it towards this
explicit, you know, area that,yes, of course, there are,
restrictions under the FirstAmendment when it comes to
(41:03):
obscenities and, you know, time,place restrictions, and content.
You know, we we limit contentbased on children and, you know,
the age of the audience. But,yeah, I just, the this seems
like just another push to try toput drag into this category
that, I mean, I would argue it'snot, or it's certainly not in
(41:25):
every circumstance.
So it definitely seemsoverinclusive. I mean, I did
read a quick article that justsaid and I don't know if it was
the judge that that made thisstatement, but, I think it might
have been, that it it wasn't somuch who the people were. So I
think he said if it was theChristian society that were
(41:47):
putting on a drag show, the theresult would be the same. So he
was trying to make it seem likehe's not, you know, upholding
this ban based on the fact thatI think it was LGBTQ community
that put it on. But I don't I Idon't think that matters either
way.
I mean, whoever's putting it on,it is an expression, in my
(42:09):
expert opinion. And, yeah, I andI also don't think that, you
know, this isn't at a elementaryschool. So, you're you're taking
care of that aspect of, youknow, the potential issues with
obscenity, but, again, I I thinkit's wrong to label this
categorically as an obscenity,And I wonder if those arguments
(42:33):
were made. Let's keep an eye onthis. I'm certainly interested,
to see how this plays out.
But, But, yeah, thanks forbringing it to our attention,
Jack. Alright. Well, that's ourshow for today. Thank you again
to John Ochoa. If, any of ourlisteners have follow-up
inquiries on BIPA or the geneticprivacy act, please reach out to
(42:56):
him.
As always, leave us comments,your thoughts on the show,
topics you want us to cover, andwe'll see you next time.
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