The Illinois Supreme Court ruled January 25, 2019, that plaintiffs may bring claims for alleged violations of the state’s biometric privacy law without alleging actual injury. Shook Partner Al Saikali told Law360, “I see this as being Chapter 1 of the book on BIPA litigation … [o]bviously the question of what it means to be aggrieved under BIPA has been settled, but there are still several big defenses that need to be addressed and litigated."
The Court’s ruling in Rosenbach v. Six Flags Entertainment addressed the threshold issue of who can establish standing as an “aggrieved” person under the Illinois Biometric Information Privacy Act (BIPA). The unanimous decision reversed a lower court ruling, but was much in line with the results of similar appeals, including a California federal court ruling that plaintiffs suing Facebook did not need to show actual harm to sue the social media platform over its tagging feature.
But Saikali said that federal courts have dismissed similar cases, relying on issues of implied notice and consent, negligence, class certification and whether the defendants are even collecting biometric information.
“At the end of the day, plaintiffs need to clear every hurdle,” Saikali told Law360. “Defendants only have to win one.”