Posted by Post Authored by Haley Jenkins
The Seventh Circuit recently resolved two questions regarding the injury-in-fact requirement of Article III standing for Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq., claims. See Bryant v. Compass Group USA, Inc, No. 20-1443 (7th Cir. 2020). Over the last three to four years, parties on either side of suits brought under BIPA have argued alternating positions regarding whether plaintiffs have Article III standing to pursue their claims in federal court.
First, the Seventh Circuit held that plaintiffs asserting claims under Section 15(b) of BIPA – the statute’s notice and consent requirement – do have standing under Article III and, therefore, district courts have subject matter jurisdiction over those claims. The Court reached this conclusion by applying the rubric for determining what harms or violations are sufficient to constitute an “injury-in-fact” that Justice Thomas laid out in his concurrence with Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016). There, Justice Thomas “drew a useful distinction between two types of injuries.” Bryant, (slip op.) at 12. One type “arises when a private plaintiff asserts a violation of her own rights; the second occurs when a private plaintiff seeks to vindicate public rights.” Id. Applying this rubric, the Seventh Circuit concluded:
Bryant was asserting a violation of her own rights – [in] her fingerprints, her private information – and that is enough to show injury-in-fact without further tangible consequences. This was no bare procedural violation; it was an invasion of her private domain, much like an act of trespass would be…A direct application of Spokeo, in our view, leads to the result that Bryant satisfied the injury-in-fact requirement of Article III. Id.
But regarding Section 15(a) – which obligates private entities to develop and adhere to publicly available retention and destruction policies – the Court came to the opposite conclusion. Because Section 15(a) requires private entities to develop and adhere to a publicly-available retention schedule and destruction policy, the Seventh Circuit concluded that private entities owe this duty “to the public generally, not to particular persons whose biometric information the entity collects.” Id. at 16. Accordingly, plaintiffs asserting Section 15(a) claims allege “no particularized harm” from defendants’ violation thereof. Id. Without a concrete and particularized injury, plaintiffs lack standing to bring Section 15(a) claims in federal court. Id. at 17. Following the Bryant ruling, and in at least two analogous cases, plaintiffs’ Section 15(a) claims have been severed and remanded to the Circuit Court of Cook County for lack of subject matter jurisdiction. See Kloss v. Acu0.ant, Inc., No. 19 C 6353, 2020 WL 2571901 (N.D. Ill. May 21, 2020) (Kocoras, J.); Fox v. Dakkota Integrated Systems, LLC, No. 19 C 2872 (N.D. Ill. May 26, 2020) (slip op.) (Kocoras, J.).
The Seventh Circuit did not address standing under Section 15(d) of BIPA, but following the logic in Bryant and previous rulings from several district judges, violations of Section 15(d) would necessarily provide standing, as well, because both sections address what steps must be taken prior to collection, in the case of Section 15(b), or disclosure (Section 15(d)) of an individual’s biometric data. Under Bryant, a defendant’s breach of the duty it owed to individuals under Sections 15(b) and (d) is what makes the conduct unlawful. Thus, Article III likely confers standing in unison to BIPA claims brought pursuant to either Sections 15(b) or 15(d), as the violation of each section is the same.
About the Author:
Haley litigates on behalf of Stephan Zouras, LLP clients in both class and individual litigation. A spirited advocate, Haley represents people in a broad spectrum of legal disputes ranging from unpaid wages and employee misclassification, to antitrust, consumer fraud, whistleblower actions, and qui tam cases. Haley joined the Stephan Zouras team as a law clerk in 2015 while attending law school. Haley graduated cum laude from Chicago-Kent College of Law in 2016, where she was a member of the Dean’s List, served as the Vice President of Fundraising for the Student Humanitarian Network, and was a two-time regional champion with the Chicago-Kent Trial Advocacy Team. Haley and her cases have been profiled by numerous media outlets including the Chicago Tribune, Crain’s Chicago, and FundFire.