Weekly Case Digests January 25, 2021 January 29, 2021.

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Raven Fox v. Dakkota Integrated Systems, LLC ,

Case No.: 20-2782

Officials: SYKES, Chief Judge, and WOOD and BRENNAN, Circuit Judges.

Focus: Class Action Fairness Action Violation Article III Standing

As its name suggests, the Illinois Biometric Information Privacy Act ("BIPA" or "the Act") protects a person's privacy interests in his biometric identifiers, including fingerprints, retina and iris scans, hand scans, and facial geometry. See 740 ILL. COMP. STAT. 14/1 et seq. (2008). Section 15 of the Act comprehensively regulates the collection, use, retention, disclosure, and dissemination of biometric identifiers. Id. 14/15. Section 20 provides a right of action for persons aggrieved by a violation of the statute. Id. 14/20.

This appeal requires us to decide a question of Article III standing for a claimed violation of section 15(a), which requires a private entity in possession of biometric data to develop, publicly disclose, and implement a retention schedule and guidelines for destroying the data when the initial purpose for collection ends. Id. 14/15(a). In Bryant v. Compass Group USA, Inc., we addressed standing to sue for two BIPA claims: (1) a violation of section 15(b), the Act's informed-consent provision; and (2) a violation of one part of section 15(a)namely, the duty to publicly disclose a data-retention policy. 958 F.3d 617, 619 (7th Cir. 2020). We held that the plaintiff had standing to pursue the section 15(b) claim, but our view of the section 15(a) claim was different. Id. at 626. The plaintiff had not alleged any concrete and particularized harm from the defendant's failure to publicly disclose a data-retention policy, so we held that she lacked standing on that claim. Id. The latter holding was quite limited. We cautioned that our analysis was confined to the narrow violation the plaintiff alleged; we did not address standing requirements for claims under other parts of section 15(a).

This appeal raises the question reserved in Bryant. Raven Fox filed a proposed class action in state court alleging that Dakkota Integrated Systems, her former employer, collected, used, retained, and disclosed her handprint for its timekeeping system. She raised several claims under BIPA, but the one that concerns us here accuses Dakkota of violating section 15(a). Dakkota removed the case to federal court under the Class Action Fairness Act ("CAFA"), 28 U.S.C. 1453, and moved to dismiss the claims as preempted by federal labor law. The district judge read Bryant to foreclose Article III standing for section 15(a) claimants, so he remanded that claim to state court and dismissed the others.

The remand order was a mistake. Unlike in Bryant, Fox's section 15(a) claim does not allege a mere procedural failure to publicly disclose a data-retention policy. Rather, Fox alleges a concrete and particularized invasion of her privacy interest in her biometric data stemming from Dakkota's violation of the full panoply of its section 15(a) dutiesthe duties to develop, publicly disclose, and comply with data retention and destruction policiesresulting in the wrongful retention of her biometric data after her employment ended, beyond the time authorized by law. These allegations suffice to plead an injury in fact for purposes of Article III. The invasion of a legally protected privacy right, though intangible, is personal and real, not general and abstract. Because the section 15(a) claim was properly in federal court, we reverse the remand order and return the case to the district court for consideration of the preemption question.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Charmell Brown v. Alex Jones, Acting Warden,

Case No.: 19-3172

Officials: FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge MICHAEL S. KANNE, Circuit Judge.

Focus: Order Amending Opinion

It is ORDERED that the opinion in this case issued October 21, 2020, is amended as follows: In the first line of the first sentence of the first paragraph under "I. BACKGROUND" on page two, strike "three counts" and replace that phrase with "one count". Further, on consideration of the petition for rehearing and rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc and all members of the original panel have voted to deny rehearing. It is, therefore, ORDERED that rehearing and rehearing en banc are DENIED.

Denied

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7th Circuit Court of Appeals

Case Name: United States of America v. Kurt Johnson

Case No.: 19-2718

Officials: ROVNER, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Plea & Sentencing Waiver of Counsel

Kurt Johnson elected to represent himself at trial on federal fraud charges. In Johnson's own telling, he fared at trial "like a bug under a hard-stomping prosecution boot heel"which is to say he lost. Johnson now appeals his waiver of counsel. He says the district court failed to confirm that his decision to waive counsel was knowing and intelligent. We agree that the district court's colloquy with Johnson was lacking, but we nonetheless uphold Johnson's waiver of counsel. This was not Johnson's first rodeoas he himself told the district court. In fact, Johnson had previously represented himself at a federal fraud trial, lost, and then unsuccessfully appealed that waiver of counsel. Given this history, and Johnson's separate and more thorough colloquy with the magistrate judge in this case, we cannot conclude that Johnson's decision to forgo counsel the second time around was uninformed. We also reject Johnson's challenge to the district court's sentencing explanation. We thus affirm his conviction and sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Adel Daoud

Case No.: 19-2174; 19-2185; 19-2186

Officials: RIPPLE, BRENNAN, and ST. EVE, Circuit Judges.

Focus: Plea & Sentencing Alford Plea

Adel Daoud pressed the button to detonate a bomb that would have killed hundreds of innocent people in the name of Islam. Fortunately, the bomb was fake, and the FBI arrested him on the spot. Two months later, while in pretrial custody, Daoud solicited the murder of the FBI agent who supplied the fake bomb. Two and a half years later, while awaiting trial on the first two charges, Daoud tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad. Daoud eventually entered an Alford plea, and the cases were consolidated for sentencing. The district court sentenced Daoud to a combined total of 16 years' imprisonment for the crimes. The government appeals that sentence on the ground that it was substantively unreasonable. We agree. We vacate the sentence and remand for resentencing.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Epic Systems Corp., v. Tata Consultancy Services LTD., et al.,

Case No.: 19-1528; 19-1613

Officials: FLAUM, MANION, and KANNE, Circuit Judges.

Focus: Punitive Damages

Without permission from Epic Systems, Tata Consultancy Services ("TCS") downloaded, from 2012 to 2014, thousands of documents containing Epic's confidential information and trade secrets. TCS used some of this information to create a "comparative analysis"a spread- sheet comparing TCS's health-record software (called "Med Mantra") to Epic's software. TCS's internal communications show that TCS used this spreadsheet in an attempt to enter the United States health-record-software market, steal Epic's client, and address key gaps in TCS's own Med Mantra soft- ware.

Epic sued TCS, alleging that TCS unlawfully accessed and used Epic's confidential information and trade secrets. A jury ruled in Epic's favor on all claims, including multiple Wisconsin tort claims. The jury then awarded Epic $140 million in compensatory damages, for the benefit TCS received from using the comparative-analysis spreadsheet; $100 million for the benefit TCS received from using Epic's other confidential in- formation; and $700 million in punitive damages for TCS's conduct.

Ruling on TCS's motions for judgment as a matter of law, the district court upheld the $140 million compensatory award and vacated the $100 million award. It then reduced the punitive-damages award to $280 million, reflecting Wisconsin's statutory punitive-damages cap. Both parties ap- pealed different aspects of the district court's rulings.

We agree with the district court that there is sufficient evidence for the jury's $140 million verdict based on TCS's use of the comparative analysis, but not for the $100 million verdict for uses of "other information." We also agree with the district court that the jury could punish TCS by imposing punitive damages. But the $280 million punitive-damages award is constitutionally excessive, so we remand to the district court with instructions to reduce the punitive-damages award.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Devin Dawson

Case No.: 20-1233

Officials: HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines Supervised Release

Devin Dawson violated the conditions of his supervised release after his release from prison. One of Dawson's violations was possessing a loaded, semiautomatic firearm. That violation separately resulted in state criminal charges. The state charges were still pending when the federal district court in this case revoked Dawson's supervised release and imposed a new 24-month prison term. On appeal, Dawson says the district court chose its 24-month sentencethe statutory maximumto punish him for possessing the firearm, when it should have focused on his breach of the court's trust and left any punishment to the state-court system. He also submits that the court disregarded his mitigation arguments and the relevant sentencing factors...