May 7, 2020

BIPA violations can be tried in federal court according to the Seventh Circuit

On May 5, 2020, the Seventh Circuit held that a plaintiff alleging violations of the Illinois Biometric Information Privacy Act (BIPA) had Article III standing to have her case decided in federal court.  The case was brought by Christine Bryant, an employee of a third party company, who had voluntarily created a fingerprint-activated dining facility account at the call center where she worked.  Compass Group USA, Inc., the defendant, operated the payment processing system and collected the biometric information, plaintiff alleged, without providing any information regarding the retention, storage and use of the information collected.  The plaintiff alleged that Compass violated section 15(a) of BIPA by failing to publicly disclose its handling of the biometric information, and violated section 15(b) of BIPA by failing to provide the plaintiff, and others like the plaintiff, with written notice of how the fingerprint would be used, who would have access to it, and how long it would be retained.

Initially filed in Illinois state court, the action was removed to federal court on motion by the defendant.  The plaintiff moved to remand the case to state court on the grounds that the district court did not have subject matter jurisdiction, because the plaintiff lacked Article III standing for failing to state a concrete injury-in-fact.  The case was remanded back to state court, and Compass’s petition to appeal the remand was granted.

On appeal, the Seventh Circuit reversed the district court’s remand finding that plaintiff has Article III standing for her section 15(b) claim, asserting that Compass’s failure to abide by the requirements of section 15(b) deprived the plaintiff of the opportunity to consider whether the terms of collection and use were acceptable, and as alleged constitutes a withholding of substantive information that deprived plaintiff of the ability to give informed consent as mandated by section 15(b).  However, the court affirmed the district court’s decision that plaintiff lacks standing under section 15(a) of BIPA, on the grounds that the disclosure mandated by that provision is owed to the public generally, not to particular persons whose biometric information is collected. 

The Seventh Circuit remanded the 15(b) claim to the district court for additional proceedings.  Regarding the 15(a) claim, the Court held that the plaintiff did not suffer a concrete and particularized injury that could be heard in federal court, and concluded that the Seventh Circuit had no authority and no occasion to address plaintiff’s state-court standing to bring this particular claim.

Seventh Circuit Opinion | Seventh Circuit Final Judgment