The Seventh Circuit has recently ruled that plaintiffs have standing to enforce the Illinois Biometric Information Privacy Act’s informed consent requirements in federal court. As we have written before, , BIPA regulates the collection, use, and retention of a person’s biometric information, e.g., fingerprints, face scans, etc. For years, federal trial courts have been split on whether a violation of BIPA’s informed consent provision is alone sufficient to confer Article III standing. . The decision in Bryant v. Compass Group USA, Inc., --- F.3d ----, 2020 WL 2121463 (7th Cir. May 5, 2020) removes that uncertainty and will drastically change the landscape of BIPA litigation going forward.
In allowing the case to proceed in federal court, the Bryant Court found the defendant, Compass Group USA, Inc., had “inflicted the concrete injury BIPA intended to protect against, i.e., a consumer’s loss of the power and ability to make informed decisions about the collection, storage, and use of her biometric information.” The plaintiff, Christine Bryant, had worked for a call center in Illinois and voluntarily provided her fingerprint information to her employer so she could access workplace vending machines. Her employer, however, did not obtain plaintiff’s written consent to collect, store, and use her fingerprint. Bryant sued Compass Group USA, Inc. on a class action basis in Illinois state court, and Compass removed the case to federal court.
Significantly, the Bryant Court’s ruling on standing only applies to Section 15(b) of BIPA—the provision that requires collectors of biometric information to obtain written informed consent. Although the plaintiff also alleged a violation of Section 15(a), which requires private entities to make a data retention schedule publicly available, the Court held that Section 15(a) violations do not cause particularized harm and thus, are not sufficient for federal standing.
Putting it Into Practice: We anticipate an increase in BIPA cases filed in Illinois federal courts. The previous uncertainty over federal standing led to the vast majority of BIPA claims being filed in Illinois state court. But Bryant opens the federal courts to Section 15(b) BIPA claims so long as the court also has diversity or federal question jurisdiction. With this new avenue of recourse open in federal courts, we also anticipate increased scrutiny on company practices surrounding the collection, use, and retention of biometric information; and, therefore, now more than ever companies should review their current practices under BIPA to ensure the statutory mandates are addressed.