Oct 18, 2018

Appeal and acceleration of Biometric Information Privacy Act lawsuits

In a recent Employment Focus newsletter it was explained the Illinois Biometric Information Privacy Act (BIPA) had become an increasingly favored tool in the arsenal of the plaintiffs class action bar. BIPA cases have been filed in Illinois courts by employees claiming their employers harmed them by not complying with statutory notice requirements under BIPA, including how biometric information would be collected, used and shared. Since the newsletter was published, the Illinois Supreme Court allowed the appeal of a seminal BIPA case, Rosenbach v. Six Flags Entertainment Corporation1. That appeal remains pending and the timeline for a Supreme Court appeal to reach resolution can take months.

The Supreme Court will likely review the Second Illinois Appellate District decision that held the complaint of a plaintiff alleging only statutory harm under BIPA, but not actual harm, would not survive a motion to dismiss. Conversely, if the plaintiff properly alleged actual harm, the complaint could survive and the plaintiff also could seek BIPA’s statutory damages. The Supreme Court will likely provide a more definitive answer and binding precedent to this controversy.2

Chuhak & Tecson’s Employment Law attorneys will follow the appeal and provide updates on this important pleading issue and other activity involving BIPA by regularly reviewing employers’ biometric information gathering, retention and disclosure policies. Since the best defense to any BIPA claim is compliance with the statute, employers are encouraged to carefully review their biometric use policies.

If you would like more information on BIPA, BIPA policies or the Rosenbach case and appeal, please contact one of Chuhak & Tecson's Employment Law attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client Alert authored by:
O. Koplan Nwabuoku, Associate

1 Rosenbach v. Six Flags Entm’t Corp., 2017 IL App (2d) 170317

2 Rosenbach v. Six Flags Entm't Corp., 420 Ill. Dec. 732 (2018)