A woman whose son had scanned his fingerprint to verify his identity when using his season pass to enter Six Flags Great America can’t sue the amusement park over the fingerprint scan, because neither she nor her son were legally harmed by the scan, a state appeals court has ruled.
In an opinion issued Dec. 21, the Illinois Second District Appellate Court in Elgin answered the question of whether the woman had legal standing to sue as part of a so-called interlocutory appeal amid plaintiff Stacy Rosenbach's ongoing class action lawsuit.
Rosenbach had brought a class action lawsuit against Six Flags Entertainment Corporation and Great America LLC in January 2016 because her son, Alexander Rosenbach, was required to activate a fingerprint scanner to use his season pass for theme park admission.
According to Stacy Rosenbach, Six Flags’ use of fingerprint scanners violates the Biometric Information Privacy Act because the company doesn’t obtain written consent or disclose its plans for collection, storage, use or destruction of customers’ personal “biometric” records – data relying on unique physical characteristics, like fingerprints or retinal scans, which can be used to identify a person.
She said her son bought the membership and recorded his fingerprint, activating his pass at the park. However, when he came home, he told his mother he didn’t have anything in writing from Six Flags concerning the fingerprint data. She alleged she wouldn’t have let her son buy the pass had she known about the scanners, and she said he didn’t return to Great America after the purchase.
Rosenbach sued the theme park operators, asking the court to expand the lawsuit to include others who had submitted to fingerprint scans at Six Flags Great America without first being asked to give written consent or receiving the written notices Rosenbach asserted the BIPA law requires.
Lake County Circuit Court Judge Luis A. Berrones dismissed the woman’s claim of unjust enrichment, but allowed the woman’s allegations under the BIPA law to continue.
Six Flags then asked the judge to send to the appeals court questions on whether Rosenbach had standing to sue under the BIPA law. Berrones granted that request April 7.
Second District Appellate Justice Michael J. Burke wrote the opinion; Justices Ann B. Jorgensen and Mary S. Schostok concurred.
The justices said the answer to the question centers on whether Rosenbach is “aggrieved” simply because Six Flags didn’t follow BIPA’s technical requirement to provide written notice of biometric data usage, or whether she must specify adverse consequences resulting from the alleged violation.
BIPA, Burke wrote, does not define “aggrieved,” and the panel determined a technical violation of the law “does not equate to alleging an adverse effect or harm.”
The panel said state lawmakers could have written BIPA “to allow for a private cause of action for every technical violation.” Choosing not doing so, they reasoned, gives weight to the word “aggrieved,” such that a plaintiff must demonstrate how they were actually harmed.
Rosenbach pointed to both the Uniform Commercial Code and Mortgage Act, each of which “allow an ‘aggrieved’ party a right of action without an actual injury,” Burke wrote. But the UCC “unambiguously identifies a concrete harm, i.e., the diminished value of the lease contract,” and the Mortgage Act allows a “party aggrieved” to recover some money should a lender’s action place “a cloud” on a real estate title, affecting its salability. Another section of the Mortgage Act “is a strict liability statute,” which BIPA is not.
Ultimately the panel determined Rosenbach did not allege harm that would allow her to pursue either damages or injunctive relief. They sent the case back to Lake County court for further proceedings.
According to Lake County court records, Rosenbach is represented in the action by attorney Mark Bulgarelli, of Progressive Law Group LLC, of Chicago.
Six Flags is represented by attorneys Debra Bernard and Jasmina Vajovic, of the firm of Perkins Coie, of Chicago.