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Plaintiff firms … start your class action engines.

Private entities -- and not just those with operations in Illinois -- it’s time to get your biometric information privacy game face on.

Relying heavily on In re Facebook Biometric, a 2018 California federal district court decision, as well as a century old definition of what it means to be “aggrieved,” the Illinois Supreme Court reversed an Illinois appellate court decision, ruling 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 and be entitled to seek liquidated damages and injunctive relief pursuant to the Act.”

The “Act” the Court is referring to is the Biometric Information Privacy Act (BIPA) (740 ILCS 14/1 et seq.).   BIPA imposes numerous restrictions on how private entities collect, retain, disclose and destroy biometric identifiers, including retina or iris scans, fingerprints, voiceprints, scans of hand or face geometry, or biometric information.

Opportunistic plaintiffs brought dozens of actions alleging BIPA violations over the past 18 months, but the flood of lawsuits abated after the ruling in Rosenbach v. Six Flags.  In that case, the appellate court ruled that the plaintiff never alleged any harm or injury to a privacy right, presenting a rare win to the defense.  Now, the Illinois Supreme Court has reversed that win and remanded the case to the trial court for further proceedings.

The stakes are huge for private companies targeted in class actions alleging BIPA violations.  For example, In re Facebook Biometric involves Facebook’s  launch of a “Tag Suggestions” feature that includes a multi-step facial recognition process to detect faces in pictures. Plaintiffs brought suit alleging that Facebook violated BIPA when it collected biometric data without notice or consent from Facebook users. With millions of class members and potentially $5,000 per violation, Facebook faces what could amount to an astronomical payout.

Johnson & Bell has substantial experience defending companies in class action, mass tort proceedings.  If you have questions about how the BIPA may impact your company, please contact D. Patterson Gloor or Joseph F. Spitzzeri.

To read the Illinois Supreme Court ruling, please click here.

For additional information about the BIPA, please click here.