A state appeals court has weighed in for the first time since the Illinois Supreme Court determined plaintiffs don't need to show they were actually harmed to bring a lawsuit under the state's biometrics privacy law, reversing a Cook County judge’s finding that a tanning salon didn’t violate the Illinois Biometric Information Privacy Act.
The Illinois First District Appellate Court issued an order March 4 in a dispute between Jennifer Rottner and Palm Beach Tan.
Justice Carl Walker wrote the opinion, and Justices Daniel Pierce and John Griffin concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.
On Jan. 25, a unanimous Illinois Supreme Court overturned the decision of a state appellate court in Rosenbach v. Six Flags Entrainment Corp., finding the appeals justices were wrong to shut down a class action brought by a woman in Lake County Circuit Court against the theme park operator. She accused the company of violating her rights and those of her teenage son under BIPA by requiring her son to scan his fingerprint to verify his identity when using his season pass at Six Flags Great America in Gurnee.
Justice Carl Walker
Chief Justice Lloyd Karmeier wrote the unanimous Supreme Court opinion, saying in part: “The (BIPA law) invests in individuals and customers the right to control their biometric information by requiring notice before collection and giving them the power to say no by withholding consent.”
Rottner’s suit alleged Palm Beach Tan violated BIPA by requiring clients to use a fingerprint scanner for membership verification without providing information about its biometric data retention policy. She also said the salon didn’t require her to authorize the collection and storage of her fingerprints.
Cook County Judge Celia Gamrath, following the Illinois Second District Appellate Court’s initial opinion in Rosenbach, dismissed Rottner’s complaint for lack of standing because she didn’t show how the salon’s alleged BIPA violations actually harmed her. The Supreme Court’s decision came after Rottner filed her appeal, prompting her to ask the appeals court to reverse Gamrath’s decision.
Walker’s opinion quoted the Supreme Court’s opinion, noting a private entity’s failure to follow BIPA requirements “constitutes an invasion, impairment or denial of the statutory rights of any person or customer whose biometric identifier or biometric information is subject to the breach.”
In Palm Beach Tan’s opposition, it said the Rosenbach opinion didn’t resolve whether Gamrath could award liquidated damages as outlined in the BIPA statute.
“In effect,” Walker wrote, Palm Beach Tan “suggests that the Supreme Court was not clear when it said that the Act ‘subject(s) private entities who fail to follow the statute’s requirements to liquidated damages whether or not actual damages, beyond violation of the law’s provisions, can be shown.’”
Yet the appellate panel found no such ambiguity in the Supreme Court opinion.
“We believe that the Supreme Court was clear, and we will apply the holding of Rosenbach,” Walker wrote. “We find that Rottner, like Rosenbach, has standing to sue and has adequately stated a claim for liquidated damages under section 20 of the Act, even if she has alleged only a violation of the Act and not any actual damages beyond violation of law.”
The panel reversed Gamrath’s judgment and remanded the case for further proceedings.
Rottner is represented in the action by attorneys with the firm of Edelson P.C., of Chicago.
Palm Beach Tan is represented by attorneys with the firm of MoloLamken LLP, of Chicago.