Seyfarth Synopsis: As the number of class action lawsuits alleging violations of the Illinois Information Biometric Privacy Act (“BIPA”) has exploded in the last six months, defendants have been eagerly awaiting guidance from an Illinois appellate court regarding what a Plaintiff must allege in order to have a viable right of action under the statute. In Rosenbach v. Six Flags, 2017 IL App (2d) 170317 (Ill. App. Ct., Dec. 21, 2017), the Illinois Appellate Court for the Second District issued the first such ruling in this area, holding that a Plaintiff must allege an actual injury to be “aggrieved” under the Act in order to seek statutory damages and injunctive relief.

The decision represents a significant victory for employers because defendants in both federal and state courts – facing potentially catastrophic damages under the statute for implementation of biometric technology for various purposes, including timekeeping practices – have made similar arguments that plaintiffs alleging mere technical violations of the statute are not “persons aggrieved,” thereby entitling plaintiffs to statutory damages and injunctive relief. The decision in Rosenbach provides clarity as to the viability of certain potential employer defenses in BIPA class actions, particularly at the motion to dismiss stage. Most notably, the decision will almost certainly serve to shift the tide in favor of employers facing BIPA class actions.

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The Illinois Appellate Court’s Decision

In Rosenbach, Plaintiff, as the mother of her minor son, brought a class action on behalf of herself and all others similarly-situated, alleging that Defendants Six Flags Entertainment Corp. (“Six Flags”) and Great America LLC (“Great America”) violated the BIPA when her son purchased a season pass for Great America theme park and defendants fingerprinted him using a biometric scanner without obtaining written consent or disclosing their plan for the collection, storage, use, or destruction of his biometric identifiers or information. Rosenbach, 2017 IL App (2d) 170317, *1. Defendants moved to dismiss on the grounds that Plaintiff was not a “person aggrieved by a violation” of the BIPA as required by the statute in order for a Plaintiff to have a right of action because Plaintiff alleged mere technical violations of the statute. Id. (quoting 740 ILCS 14/20).

The trial court denied the motion to dismiss, but later certified two questions for appellate review relating to whether a person aggrieved by a violation of the BIPA must allege some actual harm, including: (1) whether an individual is an aggrieved person under section 20 of BIPA and may seek statutory damages authorized under the BIPA when the only injury he or she alleges is a violation that a defendant collected his or her biometric identifiers and/or biometric information without providing him or her the disclosures and obtaining written consent; and (2) whether an individual is an aggrieved person under section 20 of the BIPA and may seek injunctive relief authorized under the BIPA when the only injury he or she alleges is a violation that a defendant collected his or her biometric identifiers and/or biometric information without providing him or her the disclosures and obtaining written consent. Id. *3.

The Illinois Appellate Court answered both questions in the negative and held that a Plaintiff must allege an actual injury to be “aggrieved” under the Act. In so holding, the Illinois Appellate Court analyzed the plain language of the statute and consulted various definitions of “aggrieved,” including Black’s Law Dictionary, to find that “there must be actual injury, adverse effect, or harm in order for [a] person to be ‘aggrieved.’” Id.

It further noted:

Likewise, if the Illinois legislature intended to allow for a private cause of action for every technical violation of the Act, it could have omitted the word “aggrieved” and stated that every violation was actionable. A determination that a technical violation of the statute is actionable would render the word “aggrieved” superfluous. Therefore, a plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under section 20 of the Act.

Id. *4.

In sum, the primary holding of the case is that “[i]f a person alleges only a technical violation of the Act without alleging any injury or adverse effect, then he or she is not aggrieved and may not recover under any of the provisions in section 20.” Id. *5.

Analysis And Implications For Employers

The Illinois Appellate Court’s decision constitutes a significant victory for employers facing BIPA class actions.

Most notably, the Illinois Appellate Court held that a Plaintiff cannot proceed on a claim for either statutory damages or injunctive relief for mere technical violations of the statute. This holding is key for employers because class actions brought under the BIPA frequently consist of cookie cutter complaints which merely allege technical violations of the BIPA (i.e., failure to obtain written consent, failure to maintain a “publically available” biometric privacy plan, and failure to provide notice of biometric retention and destruction policies) and not an actual injury (i.e., identity theft).

While the decision represents a significant decision at this juncture in favor of employers, we anticipate that the Plaintiffs’ class action bar will continue to attempt craft creative arguments to circumvent this ruling and find a way to argue that an individual is an “aggrieved person” for purposes of the BIPA.

Accordingly, employers should remain vigilant and ensure that they are in compliance with the BIPA’s requirements to ensure that a mere “technical” violation of the statute does not result in something which could constitute an actual injury entitling an individual to pursue statutory damages and injunctive relief.