Seventh Circuit offers narrow - and uncertain - path to Article III standing under Illinois’s Biometric Information Privacy Act
On May 5, 2020, the Seventh Circuit issued an important decision regarding whether a plaintiff asserting claims under Illinois’s Biometric Information Privacy Act (BIPA) satisfies the requirements of Article III standing. The court held that claims under section 15(b) of BIPA – which provides that a private entity may not “collect, capture, purchase, receive through trade, or otherwise obtain” a person’s biometric information without obtaining informed written consent – satisfy Article III standing, while claims under section 15(a) – which requires private entities in possession of biometric information to develop a written policy and retention schedule – do not. Although the decision seemingly authorizes federal jurisdiction over certain BIPA claims, its disparate treatment of section 15(a) and 15(b) claims raises a number of practical questions regarding BIPA removals that actually may limit the number of BIPA claims that end up in federal court.
The case, Bryant v. Compass Group USA, Inc., No, 20-1443, involved a call center employee (Bryant), who used vending machines that accepted payment through fingerprint scans linked to an employee’s account. Bryant filed a putative class action in the Circuit Court of Cook County, alleging that Compass, the operator of the vending machines, violated section 15(b) of BIPA because it never obtained her informed written consent before collecting, storing, and using her fingerprint data. Bryant also alleged that Compass violated section 15(a) of BIPA because it failed to make publicly available a retention schedule and guidelines for destroying the biometric information it was collecting and storing.
After Compass removed the case to federal court under the Class Action Fairness Act (“CAFA”), Bryant moved to remand, arguing that the district court lacked subject matter jurisdiction because she had not suffered a concrete injury-in-fact sufficient to satisfy the requirements of Article III standing. The district court agreed, concluding that Bryant had alleged pure procedural violations of BIPA that caused no concrete harm to Bryant and did not create Article III standing.
The Seventh Circuit reversed the district court’s ruling as to the Section 15(b) claim. The court concluded that Bryant was “asserting a violation of her own rights—her fingerprints, her private information,” which was “no bare procedural violation” but rather “an invasion of her private domain, much like an act of trespass would be.” The court also held that Bryant had suffered a concrete injury-in-fact because Compass “withheld substantive information to which Bryant was entitled and thereby deprived her of the ability to give the informed consent section 15(b) mandates.”
The court reached a different conclusion regarding Bryant’s section 15(a) claim, which alleged that Compass failed to publish a data retention schedule and guidelines for destroying biometric information. Unlike her section 15(b) claim, the court held that “the duty to disclose under section 15(a) is owed to the public generally, not to particular persons whose biometric information the entity collects.” The court held that Bryant did not have Article III standing to bring a section 15(a) claim because she “alleges no particularized harm that resulted from Compass’s violation of section 15(a).”
Bryant answers the question of whether a plaintiff has Article III standing to bring a BIPA claim, a question that had previously divided district courts within the Seventh Circuit. However, the decision also creates a host of new issues. Because most BIPA cases involve both section 15(a) and 15(b) claims, defendants who remove BIPA cases to federal court could face parallel proceedings in state and federal court, which will increase costs and create the risk of inconsistent rulings or verdicts. The existence of parallel federal and state proceedings also might implicate abstention doctrines, which could cause federal district courts to respond by staying proceedings on a section 15(b) claim while the section 15(a) litigation proceeds in state court.
Given these uncertainties, it is unclear whether the Seventh Circuit’s Bryant decision will lead to an increase in BIPA removals. Where a complaint alleges only a section 15(b) claim, removal poses little risk, and defendants should consider whether they have a basis to remove under CAFA or other removal statutes. Where the complaint alleges both section 15(a) and 15(b) claims, however, defendants will need to carefully consider whether the benefits of removal outweigh the potential risks.