On January 28, 2019, the Illinois Supreme Court, in Rosenbach v. Six Flags, ruled that plaintiffs are not required to demonstrate actual harm/concrete injury to have actionable claims under this statute. This ruling broadly construes the term “aggrieved” in the BIPA, contradicts 7th Circuit law on statutory standing in similar contexts, and opens the door to significant exposure for businesses that fail to adhere to the statutory requirements; this is because the BIPA permits the recovery of statutory damages up to $5,000 per violation with no cap on aggregate damages and attorney’s fees. Consequently, there has been an immediate uptick in litigation activity and a renewed focus of the plaintiffs’ bar on this law. We expect a significant wave of litigation against businesses using biometric time clocks and other technology in Illinois going forward, which will focus primarily on insufficient notice and consent.
To learn more about this issue and the ways to mitigate litigation risk under the BIPA, please read our alert here and listen to our webinar recording.
