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November 28, 2022

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Illinois Appellate Court Refuses To Carve Out Exception To Rosenbach For BIPA Liability


Illinois Appellate Court upholds wide-reaching Rosenbach decision in the first appellate decision post-dating Rosenbach. The First District Appellate Court rejected attempts to carve exceptions into Rosenbach when it held that the plaintiff sufficiently alleged liquidated damages even though the only alleged violation of the Illinois Biometric Information Privacy Act was the mere collection of biometric information.

In Depth

On January 25, 2019, in Rosenbach v. Six Flags Entertainment Corporation, the Illinois Supreme Court raised the stakes for organizations that are required to comply with the Illinois Biometric Information Privacy Act (the Act or BIPA). The court held that a plaintiff need not demonstrate actual injury or harm in order to be awarded monetary damages under BIPA. As discussed in our analysis of the Rosenbach decision, we believed that the court’s decision would result in a drastic increase in the number of class actions filed against companies under BIPA. That belief has proven true.

In the weeks since Rosenbach, dozens of class actions have been filed in Illinois state courts. Most major companies and vendors are being hauled into courts where putative class action plaintiffs are seeking injunctive relief and statutory penalties for alleged infractions under BIPA, including the improper collection, storage and/or use of biometric information and inadequate BIPA policy maintenance.

While the number of lawsuits filed has increased dramatically, there is little guidance from the courts, including the Rosenbach court, as to which defenses are viable post-Rosenbach. Defenses, such as the statute of limitations, standing and jurisdictional defenses, and defenses relating to the meaning of key phrases and prohibitions under BIPA, remain untested in the courts.

Recently, however, the Illinois Appellate Court answered one question regarding the availability of an early defense related to standing to sue under BIPA. In Rottner v. Palm Beach Tan, Inc., 2019 IL App (1st) 180691-U (March 4, 2019)—which is the first appellate court decision interpreting Rosenbach—the defendant argued that Rosenbach did not resolve the issue of “whether a party who claims only a collection of the party’s biometric data in violation of the Act, with no further injury, may recover liquidated damages provided in section 20 of the [BIPA].” Id. at ¶ 12. The defendant’s argument was nuanced because the holding in Rosenbach appeared to say that any violation of BIPA, even without proof of actual damages, was sufficient to seek statutory or liquidated damages of the Act. The defendant attempted to narrow the holding in Rosenbach by arguing that a plaintiff is not injured if the only BIPA violation in the case is the collection of biometric information—as opposed to the improper storage or use of the biometric information.

The First District rejected the defendant’s proposed carve out and refused to adopt such a narrow reading of Rosenbach. Instead, the First District unequivocally stated that Rosenbach was clear in its holding and that a plaintiff has standing under BIPA even if the only alleged violation relates to the collection of biometric information; no further damages need to be alleged because the statutory violation can result in liquidated damages/penalties under BIPA. Thus, Rottner serves as a warning to future defendants that, at least the First District appears uninterested in chipping away at Rosenbach’s sweeping holding, and arguments seeking to carve exceptions into Rosenbach relating to whether a plaintiff was sufficiently damaged outside of the alleged statutory violation will be rebuffed. Rottner, of course, is not precedential and cannot be cited outside the confines of Illinois Supreme Court Rule 23. That said, Rottner offers the first look for defendants and companies into the appellate court’s interpretation of Rosenbach.

As we continue to monitor court decisions and help clients navigate the post-Rosenbach legal landscape, the path to successful defense of BIPA actions will be clarified. In addition to monitoring court decisions and arguments, companies should pay close attention to proposed legislation relating to BIPA. Recently, bills were introduced in the Illinois legislature that purport to curtail class and other litigation under BIPA. Both the courts and the legislature will impact the post-Rosenbach landscape, and that landscape will be in flux until legislation changes the rush of litigation or successful defenses are vetted and implemented in cases.

© 2022 McDermott Will & EmeryNational Law Review, Volume IX, Number 92

About this Author


Michael W. Weaver focuses his national practice on product liability litigation which includes representing medical device, manufacturing, and consumer goods clients in complex litigation matters. He counsels clients on product recalls and compliance with the United States Consumer Product Safety Commission (CPSC) standards and labeling requirements.

He also advises companies on litigation risks associated with business decisions and commercial disputes which include significant experience in enforcing or opposing non-compete / non-solicitation employment provisions in the context...

Daniel Campbell, McDermott Law Firm, Commercial Litigation Attorney

Daniel Campbell focuses his practice on commercial litigation matters, including collective and class actions, and products liability actions.

At McDermott, Daniel has argued before the US Court of Appeals for the Seventh Circuit. Daniel has also first-chaired a stage-three evidentiary hearing in a post-conviction actual innocence case. He has experience taking and defending party depositions in large class actions, and has managed large-scale discovery and production in numerous cases. Daniel has worked on aviation product liability, bankruptcy...