Justin Kay Discusses Upcoming Illinois Supreme Court Decision on BIPA

Chicago partner Justin Kay was quoted in a Law360 article, “Illinois Cases To Watch In 2019,” regarding the Illinois Supreme Court’s forthcoming decision in Stacy Rosenbach v. Six Flags, which will address whether the Illinois Biometric Privacy Act permits a plaintiff to sue for a technical violation of its notice and consent provisions. This closely watched case will impact what has been an active stream of class action litigation in the past several years against all types of corporations doing business in Illinois, ranging from national tech companies, hotels, and airlines to local grocery stores, restaurants, and daycare facilities.

During oral argument in November 2018, the litigants and the court focused on the statute’s effort to create a balance between commercial and privacy interests, with three justices expressing skepticism that anything more than a technical violation is required. Justin, acknowledging the challenges in striking the right balance, commented, “You want to encourage responsible innovation, but there are always unscrupulous actors who will take things as far as they can.”

Rosenbach’s proposed class action came to Illinois state court in 2016 after a Six Flags amusement park in Gurnee, Illinois, required her son to scan his thumbprint to access a season pass. She alleged that she neither consented to nor received information about Six Flags’ collection and storage of her son’s data, and never would have purchased a pass if she had known the full extent of the company’s conduct. She did not, however, allege that her son suffered any harm separate and apart from not receiving the required disclosures.