Designing a Defense: Strategies for Defending against an Illinois Biometric Class Action
This is the second article in a two-part series examining Illinois’ Biometric Information Privacy Act (BIPA) and the flood of class action lawsuits alleging violations of Illinois’ biometric privacy law. The first article explained BIPA’s legal requirements and the impact of the Illinois Supreme Court’s January 2019 Rosenbach v. Six Flags Entertainment Corp. decision, which opened the floodgates for individuals to sue businesses utilizing biometric data for mere technical or procedural violations of the law. This article provides tips and strategies for corporate defendants to defend against BIPA class action suits.
While there are a range of applicable defenses to BIPA claims, the following are some of the more robust potential strategies to halt BIPA claims in their tracks, or, at a minimum, limit the amount of damages.
Lack of Article III standing in Federal Court.
One potential defense available to defendants in federal BIPA litigation is Article III standing. To establish Article III standing, a plaintiff must show, among other things, a cognizable injury-in-fact. Thus, a plaintiff must show he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual and imminent, not conjectural or hypothetical.” To be “concrete,” an injury “must be ‘de facto’; that is, it must actually exist.” Significantly, in Spokeo v. Robins, 136 S. Ct. 1540 (2016), the U.S. Supreme Court held standing requires a concrete and particularized injury, even in the context of a statutory violation.
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“Designing a Defense: Strategies for Defending against an Illinois Biometric Class Action,” by Ana Tagvoryan, Jeffrey N. Rosenthal, and David J. Oberly was published in Biometric Update on October 1, 2019. Reprinted with permission.