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Theme park operator Six Flags has agreed to pay out $36 million, to end a class action lawsuit over theme park visitor fingerprint scans.
The lawsuit is perhaps best known for producing an Illinois Supreme Court decision that has, since 2019, been used by trial lawyers to spawn hundreds of other class action lawsuits against businesses and employers of all types and sizes under Illinois’ biometric information privacy law.
Under the settlement, any Six Flags members or season pass holders who visited Six Flags Great America in Gurnee from October 2013 to December 2018 could be in line for cash payments. The payouts could be up to $200 for those who were required to scan a fingerprint when entering the park, if they were first required to do so between 2013 and 2016. And it could be up to $60 for those who first were required to scan a fingerprint when entering the park from 2016 to 2018.
Payments would be made per person, and would not change based on how many times that person visited the park from 2013-2018.
Settlement documents state the payouts would come in up to five annual installments, paid from 2021-2025. The amounts people could receive can be reduced based on the number of people who submit eligible claims.
Lawyers who brought the case will ask the court to allow them to claim $12 million in fees for their work on the case, or one-third of the total settlement fund.
The plaintiffs are represented in the action by attorneys Mark A. Bulgarelli and Ilan Chorowsky, of the Progressive Law Group, of Evanston, and attorneys Phillip A. Bock and David M. Oppenheim, of the firm of Bock Hatch & Oppenheim, of Chicago.
The lawsuit was filed by those attorneys in 2016 in Lake County Circuit Court, on behalf of a mother who claimed Six Flags violated the rights of her then-minor son, by requiring him to scan a fingerprint to verify his identity as a passholder at the Great America amusement park.
The lawsuit was expanded to include potentially thousands of other Six Flags “members” – those who pay monthly fees to maintain year-round access to all Six Flags parks – and season pass holders, who pay a one-time price to purchase a pass guaranteeing them entry to parks during Six Flags’ annual operating season.
The lawsuit asserted Six Flags violated the Illinois Biometric Information Protection Act (BIPA), by allegedly failing to first obtain written consent from members and pass holders before requiring them to scan their fingerprints, and by allegedly failing to provide certain notices allegedly required by the BIPA law, concerning the purposes of the fingerprint scans, and how Six Flags would store, manage and ultimately destroy the electronic fingerprint scan data.
In the lawsuit, the plaintiffs sought damages of $1,000-$5,000 per violation, as allowed by the BIPA law. That provision has been interpreted to define individual violations as each time a fingerprint is improperly scanned, without notice and consent, as allegedly required by the BIPA law.
The lawsuit was one of the first large cases brought over electronic fingerprint scans under BIPA. Six Flags fought the lawsuit, asserting at the time that the mother, Nancy Rosenbach, shouldn’t have been allowed to sue, because neither she nor her son were actually harmed by the collection of the data.
They noted the data remained secure, and there was no risk of identity theft or other actual, concrete harm from the scans.
The case ultimately landed in front of the Illinois Supreme Court.
In a 2019 decision, the state high court declared plaintiffs don’t need to show how they were actually harmed, before bringing potentially massive class actions worth millions or even billions of dollars, against businesses under the BIPA law.
In the decision, former Illinois Supreme Court Justice Lloyd Karmeier said the potential size of the costs to business “insignificant” in the courts’ eyes.
“Other than the private right of action authorized in section 20 of the Act, no other enforcement mechanism is available,” Karmeier wrote in the 2019 decision. “It is clear that the legislature intended for this provision to have substantial force.
“When private entities face liability for failure to comply with the law’s requirements without requiring affected individuals or customers to show some injury beyond violation of their statutory rights, those entities have the strongest possible incentive to conform to the law and prevent problems before they occur and cannot be undone.”
Following the decision in Rosenbach v Six Flags, advocates for businesses warned the ruling would “open the floodgates” for BIPA class actions in coming months and years.
Those predictions have proven largely correct. In Cook County and other Illinois courts, thousands of class actions under the BIPA law have been filed in the years since against businesses and employers of all kinds.
Many of those class actions have targeted employers who require employees to scan fingerprints to prove their identity when punching the clock to begin and end work shifts.
Faced with potentially ruinous judgments, a number of companies have opted to settle those lawsuits, with deals ranging from hundreds of thousands of dollars to millions, to end the court actions.
The BIPA law has also spurred massive class actions against big tech companies, as well, including Google and Facebook, over programs that scan the facial geometry of people depicted in uploaded photos.
Earlier this year, Facebook agreed to pay more than $650 million to settle a class action brought under BIPA, paying at least $345 each to 1.6 million Illinois claimants.
Following the Supreme Court decision in 2019, the case was sent back to Lake County court for further proceedings.
In the settlement agreement, Six Flags continued to assert it did nothing illegal, and contended its members and pass holders were never actually harmed. Further, Six Flags asserted it provided disclosures to those scanning their fingerprints after 2016.
In the agreement, Six Flags says it settled to reduce its risk and expense from continuing the lawsuit.
Lake County Circuit Judge Stacey Seneczko granted preliminary approval to the settlement on May 14.
A final approval hearing is scheduled for Oct. 29.
Claimants have until Oct. 12 to submit claims for a share of the settlement.
Six Flags has been represented by attorneys from the firm of Jenner & Block, of Chicago.