Class Action Fairness Action Violation – Article III Standing

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7^th Circuit Court of Appeals

Case Name: Raven Fox v. Dakkota Integrated Systems, LLC ,

Case No.: 20-2782

Officials: SYKES, Chief Judge, and WOOD and BRENNAN, Circuit Judges.

Focus: Class Action Fairness Action Violation – Article III Standing

As its name suggests, the Illinois Biometric Information Privacy Act (“BIPA” or “the Act”) protects a person’s privacy interests in his biometric identifiers, including fingerprints, retina and iris scans, hand scans, and facial geometry. See 740 ILL. COMP. STAT. 14/1 et seq. (2008). Section 15 of the Act comprehensively regulates the collection, use, retention, disclosure, and dissemination of biometric identifiers. Id. § 14/15. Section 20 provides a right of action for persons aggrieved by a violation of the statute. Id. § 14/20.

This appeal requires us to decide a question of Article III standing for a claimed violation of section 15(a), which requires a private entity in possession of biometric data to develop, publicly disclose, and implement a retention schedule and guidelines for destroying the data when the initial purpose for collection ends. Id. § 14/15(a). In Bryant v. Compass Group USA, Inc., we addressed standing to sue for two BIPA claims: (1) a violation of section 15(b), the Act’s informed-consent provision; and (2) a violation of one part of section 15(a)—namely, the duty to publicly disclose a data-retention policy. 958 F.3d 617, 619 (7th Cir. 2020). We held that the plaintiff had standing to pursue the section 15(b) claim, but our view of the section 15(a) claim was different. Id. at 626. The plaintiff had not alleged any concrete and particularized harm from the defendant’s failure to publicly disclose a data-retention policy, so we held that she lacked standing on that claim. Id. The latter holding was quite limited. We cautioned that our analysis was confined to the narrow violation the plaintiff alleged; we did not address standing requirements for claims under other parts of section 15(a).

This appeal raises the question reserved in Bryant. Raven Fox filed a proposed class action in state court alleging that Dakkota Integrated Systems, her former employer, collected, used, retained, and disclosed her handprint for its timekeeping system. She raised several claims under BIPA, but the one that concerns us here accuses Dakkota of violating section 15(a). Dakkota removed the case to federal court under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1453, and moved to dismiss the claims as preempted by federal labor law. The district judge read Bryant to foreclose Article III standing for section 15(a) claimants, so he remanded that claim to state court and dismissed the others.

The remand order was a mistake. Unlike in Bryant, Fox’s section 15(a) claim does not allege a mere procedural failure to publicly disclose a data-retention policy. Rather, Fox alleges a concrete and particularized invasion of her privacy interest in her biometric data stemming from Dakkota’s violation of the full panoply of its section 15(a) duties—the duties to develop, publicly disclose, and comply with data retention and destruction policies—resulting in the wrongful retention of her biometric data after her employment ended, beyond the time authorized by law. These allegations suffice to plead an injury in fact for purposes of Article III. The invasion of a legally protected privacy right, though intangible, is personal and real, not general and abstract. Because the section 15(a) claim was properly in federal court, we reverse the remand order and return the case to the district court for consideration of the preemption question.

Reversed and remanded

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.