On May 5, 2020, the Seventh Circuit held that allegations that a defendant violated the Illinois Biometric Information Privacy Act (“BIPA”) by collecting a biometric information without first obtaining informed consent constituted an “injury in fact” sufficient to confer Article III standing.  Bryant v. Compass Group USA, Inc., No. 20-1443.  Prior to this ruling, a majority of federal district courts in Illinois had come to the opposite conclusion, resulting in employers having to litigate BIPA putative class actions in Illinois state court, which has more lenient standing requirements.  (We have blogged about BIPA-related standing issues here and here.)


Plaintiff worked for a call center in Illinois which had a workplace cafeteria with vending machines operated by the Compass Group (“Compass”). The machines did not accept cash; rather, employees had to scan and use their fingerprints to create user accounts and to purchase items.

On August 13, 2019, Plaintiff filed a putative class action in the Circuit Court of Cook County, alleging Compass violated Section 15(b) of BIPA (the informed consent requirement) by never: (1) informing Plaintiff in writing that her biometric identifier was being collected or stored; (2) informing Plaintiff in writing of the specific purpose and length of term for which her fingerprint was being collected, stored, and used; or (3) obtaining Plaintiff’s written release to collect, store, and use her fingerprint.  In addition, Plaintiff alleged that Compass violated Section 15(a) of BIPA (the written policy requirement), because it never made publicly available a written policy setting forth a retention schedule and guidelines for permanently destroying the biometric identifiers it was collecting and storing.

Compass removed the action to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d), and Plaintiff moved to remand to the state court, claiming the district court lacked subject-matter jurisdiction because she did not suffer a concrete injury-in-fact necessary to satisfy the federal requirement for Article III standing.  The district court found that Compass’s alleged violations of BIPA were bare procedural violations that caused no concrete harm to Plaintiff and thus remanded the action to the state court.  Compass then appealed to the Seventh Circuit.  In contrast to the usual dynamic, Compass—the defendant—argued that Plaintiff had sufficiently alleged an injury-in-fact and the lawsuit therefore belonged in federal court.

The Seventh Circuit’s Ruling

The issue before the Seventh Circuit was whether Plaintiff’s allegations that Compass’s failure to comply with BIPA’s requirements which resulted in the loss of the right to control her biometric identifiers and information constituted an actual, concrete and particularized injury in fact sufficient to meet Article III’s standing requirement.

Looking to Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016), the court held that the Complaint had satisfied the injury-in-fact requirement of Article III with respect to Plaintiff’s claims under Section 15(b). The court reasoned that the informed consent requirement is the “heart of BIPA” and that the text of the statute demonstrates that its purpose is to ensure that individuals understand, before providing their biometric data, how that information will be used, who will have access to it, and for how long it will be retained.  The court continued that Compass’s alleged failure to abide by the requirements of Section 15(b) before it collected users’ fingerprints denied Plaintiff and others the opportunity to consider whether the terms of that collection and usage were acceptable given the purported attendant risks.  The court concluded that this was not a failure to satisfy a purely procedural requirement.  Rather, Compass allegedly withheld substantive information to which Plaintiff was entitled and thereby deprived her of the ability to give the informed consent Section 15(b) mandates.  According to the court, such a deprivation was a concrete injury-in-fact that was particularized to Plaintiff.

Conversely, though, the court concluded that Plaintiff’s claim under Section 15(a) of BIPA did not sufficiently allege a concrete and particularized injury sufficient to confer Article III standing.  The Court reasoned that any duty Compass had under Section 15(a) was owed to the public generally, and not to particular persons whose biometric information it collects, and Plaintiff failed to allege any particularized harm that resulted from Compass’s alleged violation of Section 15(a).


This decision deepens a circuit split on the issue between the Seventh and Ninth Circuits on the on hand, and the Second Circuit on the other.  However, employers defending BIPA claims in the Seventh Circuit may now have the strategic option of removing BIPA claims to federal court to take advantage of a more stringent class certification analysis under Rule 23 of the Federal Rules of Civil Procedure, and some other employer-friendly BIPA decisions.

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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 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.