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Six Flags Raises Red Flags: Illinois Supreme Court Weighs In On BIPA

On January 25, the Illinois Supreme Court held that a person can seek liquidated damages based on a technical violation of the Illinois Biometric Information Privacy Act (BIPA), even if that person has suffered no actual injury as a result of the violation. Rosenbach v. Six Flags Entertainment Corp. No. 123186 (Ill. Jan. 25, 2019) presents operational and legal issues for companies that collect fingerprints, facial scans, or other images that may be considered biometric information.

As we have previously addressed, BIPA requires Illinois businesses that collect biometric information from employees and consumers to, among other things, adopt written policies, notify individuals, and obtain written releases. A handful of other states impose similar requirements, but the Illinois BIPA is unique because it provides individuals whose data has been collected with a private right of action for violations of the statute.

Now, the Illinois Supreme Court has held that even technical violations may be actionable.  BIPA requires that businesses use a “reasonable standard of care” when storing, transmitting, or protecting biometric data, so as to protect the privacy of the person who provides the data. The rules are detailed. Among other things, BIPA requires businesses collecting or storing biometric data to do the following:

  • establish a written policy with a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information;
  • notify individuals in writing that the information is being collected or stored and the purpose and length of time for which the biometric identifier will be collected, stored, and used;
  • obtain a written release from the individual; and
  • not disclose biometric information to a third party without the individual’s consent.

The Illinois Supreme Court has now held that a plaintiff may be entitled to up to $5,000 in liquidated damages if a company violates any of these requirements, even without proof of actual damages.

In Rosenbach, the plaintiff’s son’s fingerprint was scanned so that he could use his fingerprint to enter the Six Flags theme park under his season pass. Neither the plaintiff nor her son signed a written release or were given written notice as required by BIPA. The plaintiff did not allege that she or her son suffered a specific injury but claimed that if she had known that Six Flags collected biometric data, she would not have purchased a pass for her son. The plaintiff brought a class action on behalf of all similarly situated theme park customers and sued for maximum damages ($5,000 per violation) under BIPA. The Illinois appellate court held that plaintiff could not maintain a BIPA action because technical violations did not render a party “aggrieved,” a key element of a BIPA claim.

In a unanimous decision, the Illinois Supreme Court disagreed. The court held that “an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an ‘aggrieved’ person and be entitled to seek liquidated damages and injunctive relief pursuant to the Act.” Even more pointedly, the court held that when a private entity fails to comply with BIPA’s requirements regarding the collection, retention, disclosure, and destruction of a person’s biometric identifiers or biometric information, that violation alone – in the absence of any actual pecuniary or other injury—constitutes an invasion, impairment, or denial of the person’s statutory rights.

This decision – along with the 200 class actions already filed – shows how important it is for vendors and companies using fingerprint timeclocks or other technologies that may collect biometric information to be aware of BIPA’s requirements.

© 2019 Schiff Hardin LLP

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About this Author

Rebecca Canary-King, Schiff Hardin Law Firm, Chicago, Labor and Employment Attorney
Associate

Rebecca B. Canary-King is a member of the Labor and Employment group.

Becky gained valuable experience as a 2015 Schiff Hardin summer associate. She also worked at LAF during law school and after law school as a PILI Graduate Fellow, staffing the Juvenile Expungement Help Desk and representing clients at expungement hearings.

Credentials

Education

  • University of Chicago Law School, J.D., 2016, Rubenstein Scholar
    Domestic Violence Project, Community...

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Lauren Novak Labor Law attorney, Schiff Hardin law firm, Chicago
Partner

Lauren S. Novak handles labor and employment law matters for clients in a diverse range of industries, including food and beverage, construction, gaming, manufacturing, outsourcing companies, educational institutions, and municipalities. Clients contact her to answer their day-to-day employment questions, review employee handbooks and employment policies, as well as to handle their more complex legal matters. Whether she is defending an unfair labor practice charge before the National Labor Relations Board, guiding employers through the union election process, or litigating a discrimination case, Lauren makes client communication a priority. Her primary goal is to resolve these matters in a fast and efficient way so that her clients can return their focus to their businesses.

Having previously served as in-house counsel for a labor union, Lauren has the unique ability to see both sides of each case. She uses this insight to successfully guide clients through employee contract negotiations, terminations, leave of absence issues, and settlement conferences. She also assists employers in responding to audit requests from union pension funds. When the time comes to litigate, Lauren calls upon her experience handling over a dozen labor arbitrations as well as her experience resolving discrimination, harassment, and retaliation claims to vigorously defend her clients.

Prior to joining Schiff Hardin, Lauren was an associate at a Midwest law firm representing public and private sector employers in labor and employment matters. Previously, she served as Associate General Counsel for the International Union of Operating Engineers, Local 150. She is currently an active Executive Committee member of the Chicago Bar Association Alliance for Women and the Community Outreach Committee for the Women’s Bar Association of Illinois. Lauren is also the founder of a networking group for Chicago-area female labor and employment attorneys.

Lauren  counsels employers in all aspects of labor and employment law including:

  • Reductions in force
  • Employee discipline issues
  • Labor relations
  • Policies and practices
  • Employment agreements
  • Settlement agreements
  • Severance matters
  • Collective bargaining
  • Federal and state employment discrimination matters
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