On November 20, 2018, the Illinois Supreme Court heard oral argument on whether a company’s technical violation of the Illinois Biometric Information Privacy Act (“BIPA”) is sufficient to confer standing or whether a plaintiff must allege actual harm resulted from the violation. Rosenbach v. Six Flags Entertainment Corp. et al., No. 123186. The Court’s forthcoming decision will have significant implications for Illinois employers given the enormous wave of BIPA class actions that have already been filed in Illinois (many of which arise in the context of employers using time-keeping systems that rely on employee fingerprints). Read our posts here and here for background on BIPA developments.

What is BIPA?

A brief primer on BIPA: BIPA governs how Illinois employers can collect and use biometric information from consumers and employees. BIPA requires that prior to a company’s collection of biometric information, it must: (i) notify the consumer or employee in writing that his or her biometric information is being collected; (ii) obtain a written release from the consumer or employee enabling it to collect and store the information; and (iii) promulgate a written policy setting forth a retention schedule and guidelines for destroying the information.

BIPA provides for liquidated damages of $1,000 for each negligent violation, and $5,000 for each willful violation. BIPA also allows a prevailing employee to recover attorneys’ fees, expert witness fees, and litigation costs and expenses.

A Split Among Illinois Courts

There is currently a split among the Illinois appellate courts regarding whether an individual has standing to sue following a company’s mere technical violation of BIPA. In Six Flags, the Second District of the Illinois Court of Appeals held that a plaintiff pursuing BIPA claims must allege that “actual harm” resulted from the alleged violation. Rosenbach v. Six Flags Entertainment Corp., No. 2-17-0317 (Ill. App. Ct. Dec. 21, 2017). In other words, that court held that a company’s pure procedural violation of the BIPA divorced from any actual harm is insufficient to confer standing. While the Second District made clear that the alleged “injury or adverse effect need not be pecuniary,” a plaintiff must still allege that he or she suffered concrete harm to be considered “aggrieved” within the meaning of the statute.

In contrast, on September 28, 2018 the First District in Sekura v. Krishna Schaumberg Tan Inc., No. 2-18-0175, held that a plaintiff has standing to sue under BIPA even without an allegation of actual harm. The court reasoned that requiring a plaintiff to demonstrate actual harm prior to filing suit would undermine BIPA’s purpose by “forcing [plaintiffs] to wait until after an irretrievable harm has already occurred.”

The Illinois Supreme Court Hears Oral Argument On The Scope of BIPA

On November 20, 2018, the Illinois Supreme Court entertained oral argument on whether a plaintiff must plead actual harm to have standing to sue under BIPA. While predicting how the Justices will rule is an exercise fraught with uncertainty, the Court’s questioning arguably suggested that at least three of the seven Justices seemed skeptical of Six Flags’ position that a mere technical violation on of the statute, without more, is insufficient to confer standing. Chief Justice Karmeier expressed concern that requiring plaintiffs to allege actual harm caused by improper collection of their biometric information would, in essence, allow entities to violate the statute’s notice requirements “with impunity.” In addition, Justice Burke opined that adopting Six Flags’ position would result in a plaintiff having to wait to bring suit until he or she has experienced the type of irreparable harm BIPA was designed to prevent. Justice Burke also appeared to express a view that the mere collection of someone’s fingerprints without proper notice is, in and of itself, irreparable harm.

In response to these concerns, however, Six Flags argued that BIPA represents the legislature’s attempt to strike a balance between the privacy concerns surrounding biometric data and the societal value of technologies that rely on this information. According to Six Flags, the legislature’s solution to this balancing act was providing remedies to persons who are actually harmed by violations of the notice provision, while preventing costly suits where no concrete harm has occurred. In response, plaintiff’s counsel asserted that, given the privacy interests at stake, an individual is sufficiently “aggrieved” the moment his or her biometric information is collected without the statutorily required notice.

Implications

If the Supreme Court agrees with the First District that a plaintiff is not required to plead concrete harm to establish standing, Illinois employers can expect a further proliferation of BIPA class actions.