May 21, 2019

May 21, 2019

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May 20, 2019

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“No Harm, Still Foul”: Actual Harm Not Required for Plaintiffs Under Illinois Biometric Privacy Act

In a highly anticipated decision under the Illinois Biometric Information Privacy Act (“BIPA”),[1] the Illinois Supreme Court reversed the Illinois Second District Appellate Court, holding that plaintiffs need not “plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under [BIPA]” in order to pursue a claim. The case, Rosenbach v. Six Flags Entertainment Corp., et al.,[2] which we previously discussed in client alerts (available here), centered on whether or not an individual bringing a claim under the BIPA can be considered an “aggrieved person” based solely on a technical violation of the statute and without alleging some other harm, such as monetary damages or injury caused by misuse of the data.

Plaintiff Stacy Rosenbach claimed that Six Flags collected the fingerprints of her 14-year-old son when he accessed a season pass at Six Flags amusement park. She alleged she never consented to the collection and storage of her son’s fingerprints contrary to the requirements of BIPA. Six Flags contended that for Rosenbach to qualify as a “person aggrieved” under the statute, she was required to show that some injury resulted from the collection of her son’s biometric information. After the trial court rejected the argument advanced by Six Flags, it certified a question as to the definition of an “aggrieved person” to the appellate court. Upon review, the appellate court held that “a plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under ... the act."

In reversing the appellate court, the Illinois Supreme Court noted that Six Flags’ “contention that redress under the act should be limited to those who can plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under the law would require that we disregard the commonly understood and accepted meaning of the term ‘aggrieved’; depart from the plain and, we believe, unambiguous language of the law; read into the statute conditions or limitations the Legislature did not express; and interpret the law in a way that is inconsistent with the objectives and purposes the Legislature sought to achieve.” It opined further that a violation of BIPA on its own is sufficient to support a cause of action under the statute.[3]

While the Supreme Court’s decision addressed the threshold issue of standing to assert claims under BIPA, there have been relatively few decisions interpreting other elements of the statute. There can be no doubt that the decision will result in an increase in the filing of new BIPA lawsuits. Accordingly, it is more important now than ever for companies that may be collecting, storing, or using biometric information to confirm they are in compliance with the law.


Notes:

[1] 740 ILCS 14/5.

[2] Case No. 2019 IL 123186 (Ill. Jan. 25, 2019).

[3] In contrast, some federal courts have concluded that a purely technical violation of BIPA does not establish standing under Article III of the Constitution and have dismissed BIPA claims for lack of subject matter jurisdiction where there are no allegations of actual harm. Rivera v. Google, Inc., Case No. 1:16-cv-02714 (N.D. Ill. Dec. 29, 2018).

Copyright 2019 K & L Gates

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About this Author

Molly K. McGinley, KLGates Law Firm, Complex Litigation Attorney
Partner

Molly K. McGinley concentrates her practice at K&L Gates in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation and consumer class action defense. Ms. McGinley is a member of the firm’s Securities and Transactional Litigation Practice and Class Action Litigation Defense Groups. Ms. McGinley has litigated in numerous state and federal jurisdictions, representing a broad range of clients, including small companies, Fortune 500 Companies and investment advisers. She has handled various commercial...

312-807-4419
Kenn Brotman Commercial Litigation Lawyer
Councel

Mr. Brotman is resident in the Chicago office and focuses his practice on product liability, premises liability, general tort liability, and complex commercial litigation, including breach of warranty, breach of contract and breach of fiduciary duty matters. He practices in state and federal courts throughout the country, as well as arbitration proceedings. He has significant experience in state courts in Illinois, and has broad experience in all aspects of discovery, mediation, settlement negotiations, pretrial and trial. 

Mr. Brotman represents clients in a variety of fields and industries, including recreational product manufacturers, family entertainment centers, pharmaceuticals, marine engines, boats, asbestos, big-box retailers, trucking, and film producers. Mr. Brotman has also assisted the firm’s Cyber Civil Rights Project representing victims of cyber-bullying and cyber-exploitation. 

He also has experience as national litigation coordination counsel for manufacturers and retailers and is responsible for managing, overseeing, formulating and implementing consistent defense strategies for similar litigation filed throughout the United States. 

Professional Background

Since March 2008, Mr. Brotman has been a Hearing Board Panel Chair for the Illinois Attorney Registration & Disciplinary Commission. In this capacity he presides as Panel Chair during hearings, rules on evidentiary objections and considers evidence and testimony submitted. Following the hearing, the Panel Chair leads deliberations with panel members, adjudicates ethical rule violation complaints and allegations asserted by the ARDC Administrator against attorneys, and reports findings and recommends sanctions to the Illinois Supreme Court as appropriate. 

In March 2016, the ARDC also appointed him as Assistant Chair of the Hearing Board. The Assistant Chair of the Hearing Board is responsible for working with and advising the Director of Adjudication Services and the Chair to ensure the Hearing Board efficiently and fairly fulfills the directives of the Commission and the Supreme Court. 

Mr. Brotman has completed the 40-hour performance based mediation skills training and was certified by the Chicago Center for Conflict Resolution.

Representative Work

  • Successfully tried product liability claims asserted by manufacturer’s employee against distributor, while simultaneously pursuing claims against manufacturer’s insurer, resulting in 100% reimbursement to client for all litigation related fees and costs. 

  • Managing and litigating all general liability matters for Brunswick Corporation’s business units, as well as warranty actions for its Mercury Marine and Boat Group divisions, as part of the company’s National Litigation Counsel team.
  • Member of litigation team that served as National Coordinating Counsel for Brunswick Corporation’s former bicycle division.

Education

  • J.D., Northern Illinois University College of Law, 1995, (cum laude)
  • B.S., University of Miami, 1992
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Erinn Rigney, KL Gates Law Firm, Labor and Employment Attorney
Associate

Ms. Rigney is an associate in the Raleigh office, focusing her practice on labor, employment and workplace safety.

919-831-7046