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.
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...