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A failure to follow § 15(b) of Illinois's Biometric Information Privacy Act leads to an invasion of personal rights that is both concrete and particularized.
Without explaining that the biometric identifier (fingerprint) was being collected or stored, the employer instructed the employees, Christine Bryant and others, to scan their fingerprints into the Smart Market system and establish a payment link to create user accounts. Seeking redress for that invasion of her personal data, Bryant brought a putative class action against the employer in the Circuit Court pursuant to the Illinois's Biometric Information Privacy Act (BIPA)’s provision providing a private right of action in state court to persons "aggrieved" by a violation of the statute. The employer removed the action to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), on the basis of diversity of citizenship and an amount in controversy exceeding $5 million. The district court found that the employer's alleged violations of sections 15(a) and (b) were bare procedural violations that caused no concrete harm to Bryant; accordingly, it remanded the action to the state court. The employer appealed.
Under the circumstances, was it proper to remand the case to the state court?
The district court erred in remanding the case to state court because defendant's failure to follow § 15(b) of Illinois's Biometric Information Privacy Act (BIPA), 740 ILCS 14/15 (2008), by failing to make the requisite disclosures to plaintiff or obtain her informed written consent before collecting her fingerprints, led to an invasion of personal rights that was both concrete and particularized and satisfied the requirements for U.S. Const. art. III standing. The court further held that the plaintiff lacked standing to pursue her § 15(a) of BIPA claim in federal court because that provision was not part of the informed-consent regime, and plaintiff alleged no particularized harm that resulted from defendant's violation of § 15(a).