Justin Kay Comments on Illinois Supreme Court Decision on BIPA

Chicago partner Justin Kay provided insight to a number of publications on the Illinois Supreme Court’s recent ruling in Rosenbach v. Six Flags, a decision likely to have a significant impact on how companies collect, use and retain biometric information.

Justin discussed the impact of the court’s interpretation of the Illinois Biometric Information Privacy Act (BIPA), as well as what it means for both legislation and litigation going forward. Given that many states look to BIPA as a model for potential legislation governing biometric information, Justin anticipates that the court’s ruling “is going to impact what other states do with their laws and prompt significant and justified pressure from the business community with respect to lobbying on those laws and to amend the Illinois law”

In his remarks to Crain’s Chicago Business, with regard to future lawsuits, Justin observed that “[t]he risk is that, because the potential liability is so great, it will attract suits from every angle, even against companies that are complying.” He also noted in Big Law Business that the ruling turns BIPA into a “gotcha statute,” given a failure to use “magic words when using technology that incorporates biometrics.”

With regard to current litigation, Justin noted that the ruling could be a double-edged sword. Justin commented on that for Fortune, noting that Facebook is currently before the Ninth Circuit Court of Appeals appealing a district court’s certification of a BIPA-related class, and that “[o]ne of Facebook’s arguments is that the class should not have been certified because BIPA requires some showing of actual injury, and a court would have to inquire in the circumstances of each individual’s circumstances to identify that actual injury.” Justin noted that “[t]he Rosenbach decision appears to have foreclosed that argument, because the Illinois Supreme Court ruled that no actual injury is required under BIPA.” Justin also noted, however, that the potentially staggering amount of damages could actually help Facebook in that appeal, where one of Facebook’s other arguments is that BIPA’s penalties are “so ruinous and out of proportion with any technical violation as to be unconstitutional.”

Read Justin’s comments in the articles below:

• Crain’s Chicago Business: “Illinois Supreme Court Ruling Bolsters Consumers’ Biometric Privacy”
• Cook County Record: “IL Supreme Court: No Actual Harm Needed to Sue Businesses for Scanning Fingerprints, Other Biometric IDs”
• Law360: “Ill. Biometric Ruling a Boon to Plaintiffs, Yet Questions Linger”
• Big Law Business: “Biometric Privacy Ruling Boosts Cases Against Companies”
• Fortune: “Court's Biometrics Ruling Poses Billion Dollar Risk to Facebook, Google”