The Seventh Circuit issued a surprising standing ruling when it held that federal courts can hear clams over whether a defendant violated Illinois’ unique biometric law. As noted by a Law 360 story, the ruling in Bryant v. Compass Group, “answered a question that had loomed large over the booming crop of Illinois Biometric Information Privacy Act (“BIPA”) lawsuits — and came out differently than many federal district courts that have booted BIPA suits as alleging mere procedural violations without harm.”
As noted in a Winston & Strong blog, the case is
notable because federal district court decisions have been inconsistent in their application of Spokeo to BIPA claims, an area lacking much circuit precedent. While it is arguably an unfavorable development for the defense bar in the broader law of federal standing, as it holds a plaintiff that has suffered no economic injuries has injury-in-fact, it is no doubt a welcome development for BIPA defendants, many of whom have been stuck litigating these claims in Illinois state courts without the option of removing them to federal court.
While federal courts continue to struggle with an alleged failure to provide notice and consent under BIPA is a mere procedural violation of the Act or whether it is an “injury in fact” necessary for federal standing, the Bryant decision found that the Compass Group’s failure to meet BIPA’s notice and consent requirements was enough to meet the sufficiently concrete and particularized injury test for Article III standing requirements, even when Christine Bryant, the plaintiff, had not suffered any economic harm in connection with the alleged violation of law.
The opinion noted the “role reversal in the arguments [courts] normally see in [standing] cases, with the defendant insisting that Article III standing is solid, and the plaintiff casting doubt on it.” After Compass had the suit removed to the Northern District of Illinois, Bryant sought a remand to state court arguing that she the lack a sufficiently concrete injury to have federal standing. District Court Judge Virginia Kendall held that Compass’ failure to provide notice and consent to fingerprint access to a vending machine it installed in Bryant’s workplace was a bare procedural violation of the law that did not confer Article III standing under Spokeo and its Seventh Circuit progeny.
The Seventh Circuit cited the Illinois Supreme Court’s Rosenbach v. Six Flags decision and said that Bryant’s injury was a violation of her right to informed consent, to wit, a “loss of the power and ability to make informed decisions about the collection, storage, and use of her biometric information.” As noted in the Winston & Strawn blog,[t]he court grounded its decision in two sources. The first was Spokeo itself, citing Justice Thomas’s concurrence, which drew a distinction between plaintiffs that assert violations of their own private rights (such as trespass) versus plaintiffs that seek to vindicate public rights (such as disputes over the use of public land). The panel found Bryant squarely within the former category, as the violation of her right to informed consent under Section 15(b) was “an invasion of her private domain, much like an act of trespass would be.” Separate from that, the panel also grounded its decision in cases involving “informational injury” (including Seventh Circuit precedent applying Spokeo to that issue), where a plaintiff’s harm stems from its inability to use information the defendant was required by law to disclose
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More