United States: Recent Illinois Appellate Court Ruling Could End The Recent Flood Of Class Action Lawsuits Against Employers Under Illinois' Biometric Information Privacy Act

Last Updated: January 10 2018
Article by Kwabena Appenteng and Philip L. Gordon

Since mid-September 2017, more than 50 employers that use "biometric timeclocks" in Illinois have been targeted with class action lawsuits alleging violations of the state's Biometric Information Privacy Act ("BIPA"). A unanimous ruling issued on December 21, 2017, by the Illinois Appellate Court, could reduce the flood to a trickle. The case holds that to state a claim under BIPA, a plaintiff must allege more than a mere failure to comply with BIPA's requirements to provide notice and obtain consent before collecting biometric data.1

The Illinois Appellate Court's ruling follows the Second Circuit's recent decision affirming the dismissal of a BIPA class action lawsuit for lack of standing to sue in federal court because the plaintiff alleged only technical violations of BIPA's notice and consent provisions without any attendant harm.2 The Illinois Appellate Court's decision is even more momentous for employers because it provides a substantive defense that has the potential for defeating BIPA class actions whether filed in federal or state court.

The Court's Decision in Rosenbach v. Six Flags Entertainment Corp.3

Key Facts

The allegations asserted by the lead plaintiff in Six Flags mirrored those being alleged against employers that have implemented biometric timeclocks. Specifically, the plaintiff alleged:

  • Six Flags scanned his thumbprint for security purposes using a biometric scanner.
  • Before scanning his thumbprint, Six Flags did not provide the plaintiff with a written disclosure that stated the purpose of the collection and provided a destruction schedule.
  • Before his thumbprint was scanned, Six Flags did not ask him to sign a written release authorizing the collection and disclosure of his biometric information.

Notably, the plaintiff in Six Flags was a minor who bought a season pass to the amusement park while unaccompanied by a parent and, therefore, arguably is a type of plaintiff who is even more worthy of protection than an employee.

Six Flags responded to these allegations by moving to dismiss the plaintiff's BIPA claims.4 In its motion, Six Flags argued that the plaintiff was not an "aggrieved" person—a requirement for recovering actual or liquidated damages under BIPA's remedy provision. The lower court denied the company's motion and certified an interlocutory appeal.

Issues Certified for Appeal

On appeal, the court addressed whether a plaintiff is "aggrieved" under BIPA "when the only injury he or she alleges is a ... private entity collected his or her biometric identifiers and/or biometric information without providing him or her the disclosures and obtaining written consent ..."

The Court Defines "Aggrieved" Under BIPA

The Appellate Court's ruling centered on the definition of the term "aggrieved" as used in Section 20 (the remedy section) of BIPA. Because BIPA itself provides no definition, the court looked to the plain meaning of the term "aggrieved." The court held that, by its plain language, "aggrieved" requires "an actual injury, adverse effect, or harm in order for the person to be aggrieved."5 That a plaintiff does not receive notice or provide consent before the collection of his or her biometric data, standing alone, is insufficient to meet this standard.

The court supported this interpretation of the Act by highlighting decisions by two other courts in comparable cases. First, the court cited the decision of the Northern District of Illinois federal court in McCollough v. Smarte Carte, Inc.6 In McCollough, the court dismissed a BIPA class action filed against the owner/operator of electronic storage lockers that used fingerprint entry. The plaintiff in McCollough alleged the same "technical violations" of BIPA's notice and consent provisions as did the plaintiff in Six Flags. The McCollough court held the plaintiff did not meet the dictionary definition of an "aggrieved" party because she had not alleged any facts to show that her pecuniary or other interests had been adversely affected by the defendant's alleged violation of BIPA.

Second, the Illinois court cited a Wisconsin Appeals Court decision involving an interpretation of the term "aggrieved" person in the context of a Wisconsin statute that requires mortgage brokers to provide a disclosure statement to consumers before they enter into a mortgage broker agreement. The Wisconsin court ruled that a plaintiff who merely alleged a defendant had failed to provide the statutorily required disclosure form, without a showing of some actual injury or harm, was not an "aggrieved party" under the Wisconsin Act.

Based on these decisions and the plain meaning of the term "aggrieved," the Illinois Appellate Court concluded:

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 ... Therefore, a plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under section 20 of the Act.7


The Illinois Appellate Court's decision provides much-needed clarity on a gray area in BIPA that the plaintiffs' class action bar has sought to exploit; namely, whether the mere "technical violation" of failing to comply with the Act's notice and consent provisions can serve as the basis for recovering, per employee, liquidated damages of $1,000 for negligent violations and $5,000 for intentional or reckless violations. The court's holding that in order to have a right of action under BIPA a person must allege an "injury, adverse effect, or harm" that stems from the allegedly improper collection or storage of their biometric data under the Act resolves that issue, and provides employers with a basis to dismiss a BIPA claim that does not allege a cognizable injury. Because employers likely will see plaintiffs' class action counsel attempt to "plead around" this holding with "creative" allegations of a cognizable injury, they should continue to obtain informed consent from employees in Illinois before collecting their biometric data.


1. BIPA regulates the collection of both "biometric identifiers," defined as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry" and "biometric information," defined as "any information, regardless of how it is captured, converted, stored, or shared, based on an individual's biometric identifier." Biometric information and biometric identifiers are jointly referred to as "biometric data" in this article.

2. For more information on the Second Circuit decision, please see Kwabena A. Appenteng and Philip L. Gordon, The Second Circuit Provides A Roadmap For Employers Defending Claims Under Illinois' Biometric Information Privacy Act, Littler Insight (Dec. 6, 2017).

3. Rosenbach v. Six Flags Entertainment Corp., No. 2-17-0317, 2017 IL App (2d) 170317.

4. The plaintiff also alleged a claim of unjust enrichment.

5. 2017 IL App (2d) 170317, ¶ 20.

6. McCollough v. Smarte Carte, Inc. No. 16 C 0377, 2016 WL 4077108 (N.D. Ill. Aug. 1, 2016). The court's analysis in McCollough was instructive in the case that was affirmed by the Second Circuit, Vigil v. Take-Two Interactive Software, Inc, 235 F. Supp. 3d 499 (S.D.N.Y. 2017).

7. 2017 IL App (2d) 170317, ¶ 23.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions