By Kwabena A. Appenteng, a Senior Associate with Littler Mendelson P.C. in the firm’s Chicago, IL office, and Philip L. Gordon, a Shareholder in the firm’s Denver, CO office.

On November 20, 2018, the Illinois Supreme Court will hear oral arguments in a case that has significant implications for Illinois employers, though it is not an employment-law case.  Over the past two years, more than 100 class action lawsuits have been filed by employees under the Illinois Biometric Information Privacy Act (“BIPA”).  The employees claim that their employer utilized a biometric timeclock1 without complying with two of BIPA’s requirements: (1) providing written notice explaining the purpose for collecting, and the retention period for, the biometric data; and (2) obtaining employees’ written consent to the data collection.  Because BIPA provides that “any person aggrieved by a violation of th[e] Act shall have a right of action,” the complaints in these cases allege that each employee in the putative class is entitled to recover statutory damages of at least $1,000 without pleading or proving actual harm.

On December 21, 2017, an Illinois appeals court rejected this theory, ruling that a private entity’s failure to comply with BIPA’s notice-and-consent requirements, without any allegation of actual harm, is nothing more than a “technical violation” for which a plaintiff cannot obtain relief.  See Rosenbach v. Six Flags Entertainment Corp., 2017 IL App (2d) 170317, ¶¶ 23, 28.  The court made clear: “Alleging only technical violations of the notice and consent provisions of the statute, as plaintiff did here, does not equate to alleging an adverse effect or harm.”  Id. at ¶21.  The Illinois Supreme Court allowed plaintiff’s petition for leave to appeal on May 30, 2018.2

Within the next few months, that court will decide whether an individual can obtain statutory damages or injunctive relief under BIPA when the only “injury” alleged is a violation of BIPA’s notice-and-consent requirements.  In order for the court to answer that question, however, it likely will need to address several important underlying issues, and consider the potential ramifications of its ruling.  This Legal Opinion Letter outlines the issues the court may need to consider.