Dan Costello and Andrew Smith had a major victory before the trial court on an issue that is currently undecided in the Illinois Courts. The case involves the Biometric Information Privacy Act (BIPA). The plaintiff in this case filed a multi-party class action suit alleging that the defendants violated the statute by collecting information without providing the required notices, and in doing so they were entitled to minimum statutory damages. These damages were calculated as potentially totaling several million dollars.
After nearly a year of briefing on these issues the trial court found that the plaintiffs could not maintain a cause of action against the defendants because they could not identify actual damages resulting from the defendants’ conduct. This decision mapped onto a similar decision from the Illinois Court of Appeals for the Second District, finding that BIPA requires a plaintiff to suffer actual damages as a result of a statutory violation. The case is currently on appeal to the Illinois 1st District.
A decision by the 1st District could set up a divergence in Illinois law on this issue. Further, Illinois is one of the few states that has a biometric information regulation, and the interpretation of the statute will likely affect pending lawsuits on similar issues in other jurisdictions.