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.

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Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.

Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.