Rosenbach v. Six Flags Entertainment Corp.
147 N.E.3d 125
Ill. App. Ct.2017Background
- Plaintiff Stacy Rosenbach, as next friend of her son Alexander and on behalf of a putative class, sued Six Flags and Great America under the Biometric Information Privacy Act (BIPA), alleging Alexander’s thumbprint was collected and stored without the written disclosures and consent required by section 15(b).
- Plaintiff did not allege any actual or pecuniary harm from the collection; she alleged only that, had she known, she would not have purchased the season pass and that Six Flags retained the biometric data.
- Section 20 of BIPA grants a private right of action to “any person aggrieved by a violation of this Act,” authorizing statutory damages, actual damages, and injunctive relief.
- Defendants moved to dismiss, arguing a plaintiff must allege actual harm to be a “person aggrieved.” The trial court denied dismissal and certified two Rule 308 questions about whether alleging only a section 15(b) violation (no actual injury) suffices to be “aggrieved” for purposes of statutory damages and injunctive relief.
- The appellate court granted leave to answer the certified questions and considered whether the term “aggrieved” requires some actual injury or adverse effect beyond a mere technical statutory violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a person is “aggrieved” under BIPA §20 and may seek statutory (liquidated) damages when the only allegation is a §15(b) notice/consent violation without actual harm | A statutory/technical violation alone makes Rosenbach "aggrieved" and entitled to statutory damages | "Aggrieved" requires actual injury or adverse effect; mere technical violations are insufficient | Held: No. A plaintiff must allege some actual injury or adverse effect to be a "person aggrieved" under §20, so technical violations alone do not suffice |
| Whether a person is “aggrieved” under BIPA §20 and may seek injunctive relief when the only allegation is a §15(b) notice/consent violation without actual harm | Same as above for injunctive relief | Same as above: injunctive relief requires plaintiff be "aggrieved," which requires some injury or adverse effect | Held: No. Injunctive relief under §20(4) likewise requires the plaintiff to be an "aggrieved" person by alleging some injury or adverse effect |
Key Cases Cited
- People v. Chapman, 2012 IL 111896 (Ill. 2012) (statutory construction—use plain and ordinary meaning to ascertain legislative intent)
- Liebovich v. Minnesota Ins. Co., 751 N.W.2d 764 (Wis. 2008) ("aggrieved" and "injured" are nearly synonymous; "aggrieve" means to inflict injury)
- Avudria v. McGlone Mortgage Co., 802 N.W.2d 524 (Wis. Ct. App. 2011) (statute’s word "aggrieved" requires actual injury; technical violations insufficient)
- Franz v. Calaco Dev. Corp., 352 Ill. App. 3d 1129 (Ill. App. Ct. 2004) (interpretation of Mortgage Act; discusses statutory remedies tied to tangible harms)