private right of action

By Latoya R. Laing, Thomas E. Ahlering, and Erin Dougherty Foley

Seyfarth Synopsis: Following an opinion by the Illinois Supreme Court, the 9th Circuit will discuss the Illinois Biometric Privacy Act issue — whether the Act requires class plaintiffs to show that they suffered actual harm in order to seek statutory damages and injunctive relief. A California District Court certified a class of Illinois users who claim Facebook used their biometric data in a way that violated the Illinois Biometric Privacy Act. Facebook appealed the ruling arguing that the plaintiffs could not be considered “aggrieved” individuals as required by the statute.

The Case — Patel et. al. v. Facebook Inc., Case No. 18-80052, — is pending in the U. S. Court of Appeals for the Ninth Circuit. Plaintiffs allege that Facebook violated Illinois’ BIPA when it unlawfully collected and stored biometric data on Facebook users without prior notice or consent. 2018 U.S. Dist. LEXIS 30727, *4.

Facebook filed a motion to dismiss the class action, asserting that plaintiffs lacked standing under Article III. Facebook argued that the collection of biometric information without notice or consent did not result in “real-world harms.”

The District Court denied Facebook’s motion, noting that BIPA’s plain language supported a finding of standing. The court pointed to the subsections of the BIPA in so much that it “vested in Illinois residents the right to control their biometric information by requiring notice before collection and giving residents the power to say no by withholding consent.” Since the plaintiffs in this case were never offered the opportunity to withhold consent, the court rejected Facebook’s argument and found standing satisfied under the allegations. The District Court went on to certify the plaintiffs as a class; Facebook appealed the certification to the 9th circuit. The Court will issue an opinion on the appeal in the coming months.

In 2017 we blogged about an Illinois Appellate Court ruling which held that a Plaintiff must allege an actual injury to be “aggrieved” under the Act in order to seek statutory damages and injunctive relief. In that decision, the Court noted that “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.” Rosenbach v. Six Flags Entertainment Corp., 2017 IL App (2d) 170317, *4.

The decision represented a win for employers because class action suits brought under the BIPA frequently consist of cookie cutter complaints merely alleging technical violations of the BIPA (i.e., failure to obtain written consent, failure to maintain a “publicly available” biometric privacy plan, and failure to provide notice of biometric retention and destruction policies) and not an actual injury (i.e., identity theft). Plaintiffs in Rosenbach filed an appeal to the Illinois Supreme Court; Oral arguments were heard on November 20, 2018.

On September 28, 2018, the Illinois Appellate Court in the First District held that a statutory violation alone was sufficient to establish standing in BIPA claims. In Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, the Court held that “the Act does not require actual harm in addition to a violation of the Act to file suit” pursuant to “both the plain language of the statute itself and its legislative history and purpose.” In Sekura, the Plaintiff purchased a membership with L.A. Tan, which required her to scan her fingerprint.

In her complaint, the Plaintiff noted that L.A. Tan (1) never informed her of the specific purpose or length of time for which her information was stored, (2) that she was never informed of any biometric data retention policy, (3) she never signed, nor was she provided with a written release allowing L.A. Tan to collect or store her fingerprints, and (4) she never signed a release allowing L.A. Tan to disclose her biometric data with any third party.

The Court found this sufficient to satisfy the “aggrieved” person standard as required by the Act, reversing the Trial Court’s decision. Defendant Schaumburg Tan, Inc., appealed the Appellate Court’s Decision, an opinion on the case is pending.

On January 25, 2019, the Illinois Supreme Court issued a decision which reversed the Illinois Appellate Court decision in Rosenbach. The Supreme Court focused its analysis on the basic principles of statutory construction and the Illinois legislature’s intent when drafting the Act.

A person may be “aggrieved” when “a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the decree or judgment.” The term “aggrieved” has been defined this way by Illinois courts long before the creation of the BIPA. The Court noted the Illinois legislature must have been “aware of that precedent and acted accordingly” when drafting the BIPA. Section 15 of the BIPA imposes a duty upon private entities with regard to the collection, retention, disclosure, and destruction of a person’s or customer’s biometric identifiers. Because section 20 of the BIPA authorizes a private right of action, — and offers no other enforcement mechanism — the Court provides that “it is clear the legislature intended for this provision to have substantial force.”

Ultimately, 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.”

Class action lawsuits alleging violations of BIPA have increased tremendously over the last few years. Following the Supreme Court’s decision, it is likely that the number of BIPA cases filed will continue to increase. Therefore, employers should remain vigilant and ensure that they are in compliance with the BIPA’s requirements.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.