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The Article III analysis for BIPA claims takes a new turn

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Last month, the Seventh Circuit issued a highly anticipated ruling concerning Article III standing for claims brought under the Illinois Biometric Information Privacy Act (BIPA).

According to the three-judge Panel led by Chief Judge Wood, a violation of section 15(b)—which concerns obtaining informed written consent from biometric data subjects—leads to a concrete and particularized injury that supports Article III standing.

However, a claim brought under section 15(a) for failure to make publicly available a biometric data retention policy does not confer Article III standing because "the duty to disclose under section 15(a) is owed to the public generally, not to particular persons whose biometric information the entity collects."

Not only will this opinion directly impact the removal and standing analysis for BIPA claims—since most BIPA lawsuits include claims for violations of both sections 15(a) and (b)—but it also raises compliance questions now that the Seventh Circuit has weighed in on the meaning of "publicly available" under the Act.

On May 19, 2020, Compass Group USA, Inc. filed a petition for rehearing en banc, arguing that (1) the Panel’s decision created an inter-Circuit split and (2) “[s]ection 15(a) confers private rights, the denial of which creates a concrete injury.”

We will continue to monitor this lawsuit and provide updates here.