Appeals panel: Cook County judge wrong to toss class action vs LA Tan franchisee over customer finger scans

By Scott Holland | Oct 2, 2018

By TimOve (https://www.flickr.com/photos/timove/5816645696/) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

A state appeals panel has reversed a Cook County judge’s dismissal of a class action complaint accusing an LA Tan franchisee of violating an Illinois privacy law for the way it scanned and stored digital scans of customers’ fingerprints, saying the business’ disclosure of those fingerprints to a third-party vendor could be enough of a violation to sustain the lawsuit.

The matter dates back to November 2015, when Klaudia Sekura filed a complaint in Cook County Circuit Court against L.A. Tan Enterprises. On April 7, 2016, she followed with a class action complaint in Cook County court against one of L.A. Tan’s Chicago area franchisees, identified as Krishna Schaumburg Tan. Both complaints centered on alleged BIPA violations with regard to scanning fingerprints for the company’s customer loyalty program.

Sekura said Krishna Tan improperly discloses fingerprint data to SunLync, an out-of-state, third-party vendor, fails to provide BIPA-compliant written notification to customers about the data collection — as well as a retention schedule and guidelines for permanent destruction of fingerprint data should the business fail — and doesn’t get written releases from customers consenting to collection, capture and use of fingerprints.

Cook County Judge David Akins initially rejected LA Tan’s motion for dismissal, but reconsidered in light of the 2017 decision from the Illinois Second District Appellate Court in Elgin, in Rosenbach v. Six Flags Entertainment Corp., which established a plaintiff needed to establish not just a BIPA violation, but also show how the violation caused harm.


The main distinction in Rosenbach was whether the plaintiff was “aggrieved” because Six Flags didn’t provide written notice of biometric data usage, or whether she was required to also allege adverse consequences. BIPA doesn’t define “aggrieved,” and that panel determined a technical violation of the law “does not equate to alleging an adverse effect or harm.”

Atkins dismissed Sekura’s complaint on Jan. 16, 2018, essentially deferring to the reasons outlined in Rosenbach. The Illinois Supreme Court is expected to soon weigh in on the questions tackled in the Rosenbach decision.

But in the meantime, Sekura appealed Jan. 22, and the First District Appellate Court sided with the plaintiffs in the opinion issued Sept. 28. Justice Robert Gordon wrote the opinion; Justices Eileen O’Neill Burke and Margaret McBride concurred.

According to Gordon, Atkins “was initially correct,” to reject Krishna Tan’s motion to dismiss and wrong to grant the motion in light of Rosenbach. But appellate panel also put sharp focus on another relevant ruling that followed the dismissal. On May 31, 2018, a federal judge in Chicago distinguished the earlier Rosenbach ruling in an opinion on Dixon v. Washington & Jane Smith Community-Beverly by determining disclosure of biometric data to a third-party vendor — the same factor present in Sekura’s complaint — constitutes an actionable harm affecting a plaintiff or class.

In arguing against the appeal, Krishna Tan asserted Sekura’s lawyers waited until their appeal to argue the defendants had mishandled the biometric data, a position the panel rejected. The justics also said Sekura didn’t waive her right to have the Rosenbach decision deemed relevant just because she didn’t respond to Krishna Tan’s motion to reconsider the dismissal. Specifically, Gordon wrote, Atkins was bound to consider the appellate court’s ruling and nothing Sekura filed would’ve affected that reconsideration.

By considering Rosenbach in light of Dixon, Gordon explained, it becomes clear Sekura sufficiently claimed an injury because the allegedly unauthorized disclosure of her fingerprint data to SunLync would constitute a violation of her right to keep that information private.

The justices also said Sekura’s allegations of mental anguish could constitute an actionable injury.

With the decision reversed, the issue was sent back to Cook County court for further proceedings.

According to Cook County court records, Sekura is represented by attorneys Jay Edelson and David I. Mindell, of the firm of Edelson PC, of Chicago; and Todd Logan, of the firm’s San Francisco office.

Krishna Tan is represented by attorneys from the firm of Daniel P. Costello & Associates, of Chicago.

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Circuit Court of Cook County Daniel P. Costello & Associates Edelson PC Illinois First District Appellate Court Illinois Second District Appellate Court Illinois Supreme Court

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