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Rosenbach v. Six Flags Entertainment Corporation – Illinois Supreme Court Holds That a Technical Violation of Statutory Biometric Rights is Sufficient to Bring a Claim

On Friday, the Illinois Supreme Court ruled that in order to pursue a claim for $1,000 – $5,000 in statutory damages under the Biometric Information Privacy Act (BIPA) an individual need not plead or prove more than a technical violation of the statute.  This decision opens the door to additional lawsuits under the only biometric law in the nation that allows for a private right of action.

In 2014, Plaintiff’s minor son visited Defendant’s Six Flags Great America amusement park on a school field trip.  Prior to that trip, Plaintiff had purchased a season pass for her son, but her son was required to finish the registration process at the amusement park location by providing a scan of his thumb.  Neither Plaintiff nor her son was provided with the notifications and disclosures required under BIPA.  Plaintiff brought a lawsuit under the private right of action provision of BIPA and defendant countered that Plaintiff had not suffered any actual injury or harm apart from the statutory violation itself and therefore was not an “aggrieved person.”

The issue reached the court of appeals as a pair of certified questions, and court of appeals agreed with the defendant.  The Illinois Supreme Court, however, reversed, finding that “when the General Assembly has wanted to impose such a requirement in other situations, it has made its intentions clear.”  The Supreme Court found that suffering actual damages is not necessarily required to be “aggrieved,” but rather “a person is prejudiced or aggrieved, in the legal sense, when a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the degree or judgement.”  Thus, the violation of the BIPA was not merely technical but rather sufficient itself to support the statutory right of action.

In particular, the court noted, “When a private entity fails to adhere to the statutory procedures, as defendants are alleged to have done here, ‘the right of the individual to maintain [his or] her biometric privacy vanishes into thin air. The precise harm the Illinois legislature sought to prevent is then realized.’ This is no mere ‘technicality.’ The injury is real and significant.”

It is likely the Illinois Supreme Court intended today’s decision to serve as a motivating factor to entities to comply with BIPA.  In fact, the court went so far as to note that entities have the “strongest possible incentive to conform to the law and prevent problems before they occur” when they face liability without requiring individuals to show some injury beyond violation of their statutory rights.

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About this Author

Mita Lakhia, Intellectual property lawyer, Drinker Biddle
Associate

Mita K. Lakhia handles a variety of matters across the spectrum of intellectual property litigation and counseling. Mita’s practice focuses on trademarks, advertising, and data security and privacy – and the unique intersect of these overlapping fields. Mita has experience with trademark counseling, prosecution, litigation, TTAB proceedings and portfolio management. Mita advises clients in matters related to advertising, promotions, and social media, and the impact of data collection and use related to advertising practices. Mita also has experience with...

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