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The Biometric Information Privacy Act (BIPA) Is Back Before the Illinois Supreme Court

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Charles N. Insler
Charles N. Insler
Charles N. Insler is an accomplished writer who helps spearhead the firm’s appellate practice. He has briefed more than 15 appeals over the last five years, culminating in recent victories before the Illinois Supreme Court and the U.S. Court of Appeals for the Seventh Circuit. Mr. Insler’s appellate practice covers a variety of procedural and substantive legal issues and has reached all five Appellate Districts in Illinois, all three Appellate Districts in Missouri, as well as the Illinois Supreme Court, the Missouri Supreme Court, and the U.S. Courts of Appeals for the Seventh and Eighth Circuits. He is frequently asked to handle appeals for cases he did not handle at the trial level.
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The Takeaway

Illinois’ Biometric Information Privacy Act (BIPA) establishes safeguards and procedures relating to the retention, collection, disclosure, and destruction of biometric data.  740 ILCS 14/15.  Passed in October 2008, BIPA is intended to protect a person’s unique biological traits – the data encompassed in a person’s fingerprint, voice print, retinal scan, or facial geometry.  Id.  But in the last few years, BIPA – with its statutory penalties of $1,000 for each negligent violation and $5,000 for each intentional or reckless violation – has quickly become the bane of corporate defendants.  The situation became even worse after the Illinois Supreme Court’s Rosenbach decision.  Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186.  In Rosenbach, the Court held that a “violation [of the statute], in itself, is sufficient to support the individual’s or customer’s statutory cause of action.”  Id. at ¶33 (emphasis added).  In other words, a bare statutory violation confers standing on a BIPA plaintiff.  See id.

Analysis of Recent Appellate Court Decision Regarding Workers Compensation and BIPA

BIPA is now back before the Illinois Supreme Court.  On January 27, 2021, the Supreme Court granted permission for leave to appeal the First District’s decision in McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398.  The McDonald case answered a single, certified question: Do the “exclusivity provisions of the Workers’ Compensation Act bar a claim for statutory damages under [BIPA] where an employer is alleged to have violated an employee’s statutory privacy rights under [BIPA]?”  Id. at ¶1.  The McDonald court found that the Workers’ Compensation Act did not bar or preempt a BIPA claim because an employee’s claim for liquidated damages against his or her employer (under BIPA) – “available without any further compensable actual damages being alleged or sustained” – did not represent the “type of injury that categorically fits within the purview of the Compensation Act.”  Id. at ¶27.  BIPA is a statute intended to have a preventative and deterrent effect; the Workers’ Compensation Act, meanwhile, is “a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”  Id.  The latter statute did not preempt the former.  See id.; see also Wordlaw v. Enter. Leasing Co. of Chicago, LLC, No. 20-CV-3200, 2020 WL 7490414, at *3 (N.D. Ill. Dec. 21, 2020) (“The BIPA claim is not preempted.”).

What’s Next

The Illinois Supreme Court will now decide whether McDonald was correct and whether the Workers’ Compensation Act bars a BIPA claim.  After Rosenbach v. Six Flags, corporate defendants will be hoping for a smoother ride from the Illinois Supreme Court.  But if past precedent is any indication, corporate defendants may want to strap in: the trip to the Illinois Supreme Court could be a bumpy one.

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