In a case of first impression, the Seventh Circuit just answered a much-anticipated question about standing in cases filed under the Illinois Biometric Information Privacy Act (“BIPA”). Bryant v. Compass Grp. USA, Inc. decided whether a BIPA plaintiff has Article III standing. The answer is both yes and no. This dual answer is not surprising given the awkwardness of the arguments presented. Though the holding is a victory for the defense bar, Bryant is the latest evidence of an ever-increasing circuit split that should culminate in the United States Supreme Court further clarifying its holding in Spokeo v. Robins concerning Article III standing.
Like most BIPA cases, the Bryant complaint was originally filed in Illinois state court. The Bryant plaintiff asserted claims under both sections 15(a) and 15(b) of BIPA. The former relates to the defendant’s failure to make publicly available disclosures, and the latter relates to the defendant’s failure to secure the plaintiff’s individual informed consent. The defendant removed the case to federal court. The plaintiff then moved to remand, ironically contending that she lacked a sufficiently concrete injury in fact to maintain Article III standing to maintain federal court jurisdiction. The defendant paradoxically argued that plaintiff alleged such an injury, relying on the Illinois Supreme Court opinion in Rosenbach v. Six Flags Entm’t Corp., wherein the court held that a violation of the right to receive certain information is an actionable grievance. The novelty of these arguments was not because of their substance, but instead, which side advanced them—an observation that Judge Wood noted in her opinion. Siding with the defendant, the district court remanded the case, and the plaintiff appealed.
The Seventh Circuit premised its analysis on the fact that BIPA protects both private and public rights—an observation Justice Clarence Thomas made in his Spokeo concurrence. Once this distinction was drawn, the court had “no trouble” concluding that the plaintiff had Article III standing sufficient to vindicate her private rights as set out in the informed consent requirements of BIPA.
But the same was not true of BIPA Section 15(a) claims relating to duties owed to the public in general. The court held that the plaintiff suffered no particularized injury from alleged violations of this section, and so lacked standing to pursue them in federal court.
The immediate impact of Bryant is the availability of a federal forum for BIPA class action defendants where class certification criteria are typically more stringently applied. Bryant also narrows the scope of these complaints by limiting them to Section 15(b) claims. The significance of the distinction drawn by the Seventh Circuit in Bryant should not be overlooked, given the increased concern over privacy rights in the wake of the COVID‑19 pandemic and litigation that may arise in that context.
The long-term impact of Bryant, however, relates to Article III in general. BIPA litigation is relatively contained to Illinois state courts and will be removed to Illinois federal courts governed by Seventh Circuit precedent. But Bryant is the latest addition to the ever-growing circuit split on whether a bare procedural violation satisfies Article III standing post-Spokeo. Bryant may have clarified the limited question of whether a BIPA plaintiff has Article III standing, but the opinion adds another log to the Article III fire that only the United States Supreme Court will be able to extinguish.
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