CHICAGO (Legal Newsline) – A closely watched Fair Credit Reporting Act (FCRA) case could have bearing on Illinois' one-of-a-kind biometric privacy law after an appeals court ruled last month the plaintiff alleged no actual harm, an attorney who defends businesses against such cases said during a recent interview.

However, even if the case, Rosenbach v. Six Flags Great America, is appealed to the Illinois Supreme Court, there is no guarantee the high court will hear the case, Gerald J. Maatman Jr., senior partner in Seyfarth Shaw's Chicago and New York offices, said during a Legal Newsline interview. 

"The Illinois Supreme Court, not unlike the supreme courts of other states or the United States, is very busy," Maatman said. "And many, many appeals are lodged with it. It hears maybe less than 5 percent of those appeals."

The putative class action marks the first time the Illinois Biometric Information Privacy Act has ever been interpreted at the state's appellate level in Illinois, Maatman said. 

"And so the issue would be for the Illinois Supreme Court would be whether that ruling is correct and will, therefore, no need to review it; or 'Should we wait until there's a conflicting decision by one of the other five appellate courts and then resolve the conflict between the two decisions?'" he said.

"So probably, in my opinion, there needs to be a bit more case law that develops under the statute before the Illinois Supreme Court weighs in on it."

Plaintiff Stacy Rosenbach claimed that Six Flags violated the state's Biometric Information Privacy Act when her son purchased a season pass and was fingerprinted without written consent or disclosing what the plan was to collect, store, use or destroy his biometric identifiers or information. 

Under the Biometric Information Privacy Act, a plaintiff must allege actual harm, which doesn't have to be monetary but could be a technical violation.

Rosenbach did not claim any harm but she said she wouldn't have purchased the season pass if she'd known Six Flags intended to violate the Biometric Information Privacy Act.

In an opinion handed down Dec. 21, the Illinois 2nd District Appellate Court in Elgin ruled that Rosenbach had failed to show legal harm had resulted from the fingerprint scan. Maatman said he agreed with that ruling. 

"I agree with it because it's in line with the U.S. Supreme Court's decision the Spokeo case from 2016 that established what sort of injury a litigant must suffer in order to have what's called 'standing' to bring a lawsuit," he said.

"The Illinois Biometric Information Privacy Law and the numerous class actions that have been brought under it, many people have looked at them and are alleging what are known as technical violations of the law or nonpocketbook injury; simply a breach of a provision of law that has not impact one way or another on a particular individual. 

"In this case, it's the first one to decide in Illinois what sort of injury is required by someone who brings a lawsuit under that statute. That falls in line with analogous federal precedent that says there must be a distinct injury to that person or their property, separate and part from simply just a technical violation of the law."

An appeal of the Rosenbach case, if one is filed, would be within the confines of Illinois state law. 

"If there is an appeal, I would anticipate the plaintiffs would appeal and say the standing analysis used by the Illinois appellate court is inconsistent with the statute as written and that technical violations of the law allow a plaintiff to sue," Maatman said.

"I think that would be out of line with the majority rule in the U.S. Supreme Court's decision in Robins v. Spokeo but stranger things certainly have occurred."

The U.S. Supreme Court may hear Spokeo Inc. v. Robins again.

The plaintiff in that case, Thomas Robins, claimed Spokeo Inc., a so-called "people search engine," violated the Fair Credit Reporting Act when it published inaccurate information about him, including wrong information about his age, education, employment status and details about his personal life. 

Robins claims the wrong information Spokeo published about him damaged potential employment opportunities for himself and anyone else covered in his class action.

Spokeo long has claimed that Robins hasn't alleged sufficient injury.

The Spokeo case had been remanded back to the U.S. Court of Appeals for the Ninth Circuit in May 2016 by the U.S. Supreme Court, which directed the lower court to identify an accompanying concrete harm in the case. 

In its subsequent ruling this past August, the Ninth Circuit, despite direction from the Supreme Court, did not determine actual harm but instead ruled that the inaccurate information was material and must have resulted in harm.

Spokeo filed a writ of certiorari with the U.S. Supreme Court on Dec. 4.

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