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No. 123186
IN THE SUPREME COURT OF ILLINOIS
STACY ROSENBACH, as Mother and Next Friend of Alexander Rosenbach, individually and as the representative of a class of similarly situated persons,
Plaintiff-Appellant,
v.
SIX FLAGS ENTERTAINMENT CORP. and GREAT AMERICA LLC,
Defendants-Appellees.
On Appeal from the Appellate Court of Illinois, Second District, No. 2-17-317, there on appeal from the Circuit Court of Lake County, No. 2016 CH 13,
the Honorable Luis A. Berrones, Judge.
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF THE POSITION OF THE APPELLANT, INSTANTER
The Proposed Amici Curiae respectfully move, pursuant to Supreme Court Rule 345 for
the entry of an order allowing it to file an amicus curiae brief in support of Plaintiff-Appellant
Stacy Rosenbach (“Rosenbach”) in this matter, instanter. In support of its motion, Proposed Amici
state as follows:
I. Identity and Interest of the Proposed Amici
Amici Curiae are employees who have sued their respective employers for violating their
rights under the Biometric Information Privacy Act (BIPA), 740 ILCS 14/1 et. seq. The Second
District’s opinion in Rosenbach v. Six Flags, 2017 IL App (2d) 170317 has given each of their
respective employers an argument to dismiss their cases (and to continue violating BIPA with
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E-FILED7/5/2018 12:59 PMCarolyn Taft GrosbollSUPREME COURT CLERK
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impunity) by claiming that the employees are not “aggrieved” absent a showing of tangible
damages aside from violation of the statute.
II. Reasons to Allow the Proposed Amicus Brief
Rule 345 requires movants to identify “how an amicus brief will assist the court.” The
proposed Amici identify below the general standards for accepting amicus briefs, and in particular
how their proposed brief will assist the Court.
A. Standards for Accepting Amicus Briefs
This Court recognizes only a limited number of circumstances in which permission to file
an amicus brief should be granted, one of which is “when the would-be amicus has a direct interest
in another case, and the case in which he seeks permission to file an amicus curiae brief may, by
operation of stare decisis or res judicata, materially affect that interest. . .” Kinkel v. Cingular
Wireless, LLC (Ill. Jan. 11, 2006) at 3 (citing National Organization for Women v. Scheidler, 223
F.3d 615, 617 (7th Cir. 2000)). The Proposed Amici face the same issue being litigated in
Rosenbach – whether the word “aggrieved” requires a showing of economic injury – in their
respective cases. Certainly being a party to a case that turns on the same precise issue being
litigated constitutes a direct and material interest in the case.
B. How the Proposed Amicus Brief Will Assist the Court
The Proposed Amici present a different background in their proposed amicus brief than
those of the parties in this case. The experiences of employees who have had their biometric
information compromised by their employers can provide a new and valuable perspective to the
Court as it reviews the decision below and the important policy considerations implicated by it.
The Proposed Amici will not rehash the legal issues that will be thoroughly addressed by the
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parties, but rather outline for the Court the real-world consequences this decision will have in the
context of employees in the workplace.
The Second District’s decision thwarts the basic purpose and ultimate aim of BIPA: to
regulate “the collection, use, safeguarding, handling, storage, retention, and destruction of
biometric identifiers and information” in an effort to serve “[t]he public welfare, security, and
safety” of Illinois citizens. 740 ILCS 14/5. If left uncorrected, the decision below would effectively
grant employers free reign to continue requiring Illinois employees to disclose their sensitive
biometric identifiers and information as the price to pay for employment, but without any
corresponding safeguards to protect their privacy rights and curb abuse. Employees already lack
bargaining power to negotiate for reasonable security of their personal, sensitive, and valuable
biometric data; the Second District’s decision essentially eviscerates any form of recourse
available under BIPA in the event that their employers do not properly safeguard this critical
information.
In light of the fact that the number of employers utilizing biometric identifying devices in
the workplace is rapidly expanding, the Proposed Amici have a strong interest in ensuring
employers’ compliance with BIPA. However, this can only be accomplished if employees have a
meaningful way to hold their employers accountable for violations of the statute, regardless of
whether these violations resulted in tangible damages. Anything less than a reversal of the Second
District’s decision would send a detrimental signal to employers that they can continue to collect,
use, store, and disclose their employees’ sensitive biometric data in violation of BIPA and face no
consequences for doing so. Because this Court’s decision will not only affect the biometric
information of consumers, but in large part employees as well, Amici have an interest in this matter
and the attached amicus curiae brief will be of service to this court.
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Conclusion
For the foregoing reasons, the undersigned proposed Amici respectfully request leave to
file the attached amicus brief, instanter.
Date: July 3, 2018 Respectfully submitted,
By: James B. Zouras James B. Zouras Ryan F. Stephan Andrew C. Ficzko Haley R. Jenkins STEPHAN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 (312) 233-1550 (312) 233-1560 f
ATTORNEYS FOR PROPOSED AMICUS WYESHA WATTS
By: Douglas M. Werman Douglas M. Werman Maureen A. Salas WERMAN SALAS, PC 77 W Washington St, Suite 1402 Chicago, IL 60602 (312) 419-1008 (312) 419-1025 f
[email protected] [email protected]
ATTORNEYS FOR PROPOSED AMICUS EMILY KIEFER
By: Alejandro Caffarelli Alejandro Caffarelli CAFFARELLI & ASSOCIATES, LTD 224 S. Michigan Avenue, Suite 300 Chicago, IL 60604
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(312) 763-6880 [email protected]
ATTORNEYS FOR PROPOSED AMICI MAXIMO FERNANDEZ, ARTURO CORDONA, SERGIO DURAN, RODRIGO PUENTES AND ISAIAS VILLANUEVA
By: Kasif Khowaja Kasif Khowaja THE KHOWAJA LAW FIRM, LLC 70 E Lake St, 12th Floor Chicago, IL 60601 (312) 356-3200
ATTORNEYS FOR PROPOSED AMICI ROBIN RAPAI
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No. 123186
IN THE ILLINOIS SUPREME COURT
STACY ROSENBACH, as Mother and Next Friend of Alexander Rosenbach, individually and as the representative of a class of similarly situated persons, Plaintiff- Appellant,
v. SIX FLAGS ENTERTAINMENT CORP. and GREAT AMERICA LLC, Defendants-Appellees.
On Appeal from the Appellate Court of Illinois, Second District, No. 2-17-317 There on appeal from the Circuit Court of Lake County, No. 2016 CH 13 The Honorable Luis A. Berrones, Judge Presiding.
BRIEF AMICI CURIAE OF WYESHA WATTS, MAXIMO FERNANDEZ, ARTURO
CORDONA, SERGIO DURAN, RODRIGO PUENTES, ISAIAS VILLANUEVA, EMILY KIEFER AND ROBIN RAPAI, IN SUPPORT OF APPELLANT
James B. Zouras Ryan F. Stephan Andrew C. Ficzko Haley R. Jenkins STEPHAN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 (312) 233-1550 (312) 233-1560 f
ATTORNEYS FOR PROPOSED AMICUS WYESHA WATTS
Douglas M. Werman Maureen A. Salas WERMAN SALAS, PC
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77 W Washington St, Suite 1402 Chicago, IL 60602 (312) 419-1008 (312) 419-1025 f
[email protected] [email protected]
ATTORNEYS FOR PROPOSED AMICUS EMILY KIEFER
Alejandro Caffarelli CAFFARELLI & ASSOCIATES, LTD 224 S. Michigan Avenue, Suite 300 Chicago, IL 60604 (312) 763-6880
ATTORNEYS FOR PROPOSED AMICI MAXIMO FERNANDEZ, ARTURO CORDONA, SERGIO DURAN, RODRIGO PUENTES AND ISAIAS VILLANUEVA
Kasif Khowaja THE KHOWAJA LAW FIRM, LLC 70 E Lake St, 12th Floor Chicago, IL 60601 (312) 356-3200
ATTORNEYS FOR PROPOSED AMICI ROBIN RAPAI
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POINTS AND AUTHORITIES
INTEREST OF AMICUS..............................................................................................................1
Rosenbach v. Six Flags, 2017 IL App (2d) 170317 ..............................................................1
Kinkel v. Cingular Wireless, LLC (Ill. Jan. 11, 2006) ...........................................................1
National Organization for Women v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000) ............1
ARGUMENT ..................................................................................................................................1
I. Employees, particularly hourly-paid employees from whom biometric data is now routinely collected, rely on legislative protections to prevent harm and
abuse ........................................................................................................................2
Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1634 (2018)................................................2
Lochner v. New York, 198 U.S. 45 (1905) ...........................................................................2
Adkins v. Children’s Hosp., 261 U.S. 525 (1923) ................................................................3
Coppage v. State of Kansas, 236 U.S. 1 (1915) ...................................................................3
Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 445 (1927) ............3
West Coast Hotel v. Parrish, 300 U.S. 379, 393 (1937) ......................................................3
Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. ............................................3
Illinois Human Rights Act, 775 ILCS 5/2 ...........................................................................3
National Labor Relations Act, 29 U.S.C. § 151 et seq. ......................................................4
Emmanuel Saez,
Income and Wealth Inequality, 35 CONTEMPORARY ECONOMIC POLICY, No. 1, Fig.
1, at 9 (Jan. 2017), available at https://perma.cc/M9CG-V6WT ...............................4
Fair Credit Reporting Act, 15 U.S.C. § 1681b(b) ................................................................4
Mass. Gen. Laws Ann. ch. 93H, § 2; 201 Code Mass. Regs. 17.00 et seq. .........................4
Right to Privacy in the Workplace Act, 850 ILCS 55/10 ....................................................4
II. The legislature’s intent to prevent harm arising from employer use of biometrics should not be thwarted by a reading that effectively eviscerates any meaningful enforcement mechanism for employees ....................................5
Dale R. Setlak,
Advances in Fingerprint Sensors Using RF Imaging Techniques, in AUTOMATIC
FINGERPRINT RECOGNITION SYSTEMS (Nalina Ratha & Ruud Bolle, eds., 2004) ....5
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POINTS AND AUTHORITIES (continued)
Chicago Tribune (Mar. 22, 2006),
available at https://perma.cc/54S7-4Y5W ...............................................................5
Illinois House Transcript, 2008 Reg. Sess. No. 276 at 249,
available at https://perma.cc/4B4G-YVWT .............................................................5
Biometric Information Privacy Act, 740 ILCS 14 ..................................................... passim
In re Marriage of Goesel, 2017 IL 122046, ¶ 13 .................................................................6
Uehara v. Schlade, 236 Ill. App. 3d 252, 260 (1st Dist. 1992) ............................................8
Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 84 (1970) ......................................................8
CONCLUSION ..............................................................................................................................9
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INTEREST OF AMICUS
Amicus curiae are employees who have sued their respective employers for
violating their rights under the Biometric Information Privacy Act (BIPA), 740 ILCS 14/1
et seq. A detailed list of amici is included as Appendix 1. The Second District’s opinion in
Rosenbach v. Six Flags, 2017 IL App (2d) 170317, has given each of their employers an
argument to dismiss their cases (and to continue violating BIPA with impunity) by claiming
that the employees are not “aggrieved” absent a showing of undefined “tangible” damages
in addition to a violation of the statute. Amici are therefore directly interested in the
outcome of this action, as this Court’s interpretation of BIPA’s damages provision will
affect their and other similarly-situated employees’ ability to ensure employer compliance
with BIPA’s substantive provisions. See Kinkel v. Cingular Wireless, LLC (Ill. Jan. 11,
2006) at 3 (noting permission to file an amicus brief should be granted “when the would-
be amicus has a direct interest in another case, and the case in which he seeks permission
to file an amicus curiae brief may, by operation of stare decisis or res judicata, materially
affect that interest . . .” (citing National Organization for Women v. Scheidler, 223 F.3d
615, 617 (7th Cir. 2000)).
ARGUMENT
For decades, legislatures have recognized that many employees lack the bargaining
power to secure necessary protections in the workplace. Where employee leverage cannot
guarantee workplace safety or a minimum wage, federal and state legislatures have stepped
in to establish a floor. One arena where that statutory floor is increasingly critical is
employee privacy, where employers—empowered by new technologies and by a
workforce with weakening leverage—can require an employee to provide their most
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detailed, sensitive and personal identifying information, right down to their immutable
characteristics in their fingerprint, handprint, or facial features. Because this information
is maintained electronically, often on servers or cloud platforms maintained by third
parties, it can be quickly and easily transferred or disclosed. Illinois has continued its
tradition of leading the way to protect the privacy, security and welfare of its citizens by
providing basic protections to employees by enacting BIPA. The lower court’s
interpretation of BIPA’s enforcement provision, however, renders these critical protections
illusory, and for this reason, should be reversed.
I. Employees, particularly hourly-paid employees from whom biometric data is now routinely collected, rely on legislative protections to prevent harm and abuse.
BIPA follows in a long line of statutes that secure the minimum protections for
employees, regardless of their ability to force concessions from an employer at the
negotiating table. As Justice Ginsburg recently discussed in depth in her dissent to the
Court’s decision in Epic Systems Corp. v. Lewis, the historic default view had long been
that that the terms of employment were “whatever terms the employers dictated.” 138 S.
Ct. 1612, 1634 (2018) (Ginsburg, J., dissenting). These de facto terms ranged from the
financially rapacious to the physically dangerous, with wages and working conditions
skating just above the line that would—through disfiguration or starvation of the
workforce—disrupt the assembly line itself. This view was so firmly held that even
legislative efforts to establish reasonable terms of employment were undone by specious
notions of “freedom of contract.” See, e.g., Lochner v. New York, 198 U.S. 45 (1905).
As states began to recognize the threat posed to workers when the bargaining table
was the floor, state legislatures attempted to create statutory rights to maximum work
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hours, minimum wage, and protections for collective bargaining. These rights were struck
down. Id. (overturning statutory prohibition on bakers working more than 60 hours per
week as violating Due Process); Adkins v. Children’s Hosp., 261 U.S. 525 (1923)
(overturning minimum wage for women and children); Coppage v. State of Kansas, 236
U.S. 1 (1915) (striking down state prohibition on anti-union, “yellow dog” contracts). As
Justice Holmes observed in dissent during this particular period of judicial activism:
I think the proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.
Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 445 (1927). In time,
of course, Justice Holmes’ view eventually prevailed: as legislatures enacted more worker
protections, the Supreme Court came to reject its crabbed view of due process, and affirmed
the police power of the States to regulate conditions of work. In the seminal case of West
Coast Hotel v. Parrish, overruling Adkins, the Supreme Court refuted the employers’
argument that “adult employees should be deemed competent to make their own contracts,”
finding that it was rebut by the simple but abiding fact of the “inequality in the footing of
the parties.” 300 U.S. 379, 393 (1937).
Since then, federal and state legislatures have enacted worker protections in those
areas of the employer-employee relationship where that fundamental “inequality in
footing” can cause working conditions to plunge into the basement. These range from
workplace safety, 29 U.S.C. § 651 et seq. (Occupational Safety and Health Act), to anti-
discrimination, 775 ILCS 5/2, and protection of collective bargaining, 29 U.S.C. § 151 et
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seq. (National Labor Relations Act). Luckily, amici live in an age where legislatures will
act to protect workers, and that intent will be upheld by the courts.
But it is still one in which legislatures struggle to keep up with employers’ ability
to push employee rights past the outward bounds of reasonableness, decency, or safety—
exacerbated by income inequality that surpasses that of the Lochner era. Emmanuel Saez,
Income and Wealth Inequality, 35 CONTEMPORARY ECONOMIC POLICY, No. 1, Fig. 1, at 9
(Jan. 2017), available at https://perma.cc/M9CG-V6WT. Too often, employees—
particularly those paid by the hour – must take what they can get. Legislatures, like the
Illinois legislature, do what they can to ensure employers do not impose conditions of
employment that unduly imperil the physical or financial safety of employees.
One facet of the employment relationship which legislatures have recently
recognized a statutory floor is necessary is employee privacy: employers’ access to their
employees’ otherwise personal, private or sensitive information, and employers’
safeguarding of that information when it is collected. Employers routinely require workers
to disclose the most revealing personal information in order to gain employment, including
financial and criminal history, and lax care of this information, which is inherently subject
to abuse, burdens workers with tremendous financial and emotional risks. Legislatures at
the state and national level have reacted, enacting laws such as the Fair Credit Reporting
Act (“FCRA”), which regulates when and how an employer may obtain a credit or
background check on employees. 15 U.S.C. § 1681b(b). State legislatures have stepped in
to further protect employee privacy, such as Massachusetts’ requirement to follow certain
security protocols in the handling of sensitive employee information, Mass. Gen. Laws
Ann. ch. 93H, § 2; 201 Code Mass. Regs. 17.00 et seq., and Illinois’ own Right to Privacy
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in the Workplace Act, which prohibits employers from requiring an employee to provide
usernames and passwords to the employee’s personal online accounts or from accessing
those accounts. 850 ILCS 55/10. BIPA is another such law.
II. The legislature’s intent to prevent harm arising from employer use of biometrics should not be thwarted by a reading that effectively eviscerates any meaningful enforcement mechanism for employees.
Illinois is on the leading edge of employee privacy in the protection of the
information at issue in this suit: the measurement—for the purposes of identification—of
employees’ immutable physical characteristics, known commonly as biometrics. Biometric
technology has only recently become inexpensive and accurate enough to become widely
used. See Dale R. Setlak, Advances in Fingerprint Sensors Using RF Imaging Techniques,
in AUTOMATIC FINGERPRINT RECOGNITION SYSTEMS (Nalina Ratha & Ruud Bolle, eds.,
2004). It did not take long for the first major fallout to occur from this new technology,
however, and that impact was primarily felt in Illinois. In the early 2000s, Pay by Touch,
a biometrics startup, chose Illinois to pilot consumer biometric identification, and deployed
fingerprint scanners in grocery stores and gas stations across the state. “Pay by finger:
Jewel installs machines that let you buy groceries by touch,” Chicago Tribune (Mar. 22,
2006), available at https://perma.cc/54S7-4Y5W. But Pay by Touch went bankrupt, and
the bankruptcy proceedings threatened that the company’s massive database of fingerprints
would be put up for sale. See Illinois House Transcript, 2008 Reg. Sess. No. 276 at 249,
available at https://perma.cc/4B4G-YVWT.
The Illinois legislature’s response was the Biometric Information Privacy Act,
which regulates the collection of biometric identifiers—those unique characteristics like
fingerprints, handprints, and facial measurements—and biometric information derived
from them. First, collectors of either type of biometric data must notify the subject of
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collection that information is being collected, explain how long it is being collected and
why, and must obtain a written release. 740 ILCS 14/15(b). Second, any data collected
must be held securely, consistent with the reasonable standard of care in the collector’s
relevant industry and guarded at the same or higher standard than other confidential and
sensitive information. 740 ILCS 14/15(e). Third, no disclosure of the data is permitted
without consent of the subject or with certain other exceptions. 740 ILCS 14/15(d). Fourth,
the statute requires collectors to create and publicize a policy stating how long biometric
data will be kept and requiring its destruction. 740 ILCS 14/15(a). Finally, the statute
prohibits collectors from selling or otherwise profiteering from biometric data. 740 ILCS
14/15(c).
In short, every provision of BIPA—like many regulations involved in the
employer-employee relationship—is directed at preventing injury and abuse.
Notwithstanding the preventative, rather than ameliorative, nature of the statute, the
legislature provided an enforcement provision, permitting any person “aggrieved by a
violation of this Act” with a cause of action to enforce any provision of the statute. 740
ILCS 14/20.
“The primary goal of statutory construction, to which all other rules are
subordinate, is to ascertain and give effect to the intention of the legislature.” In re
Marriage of Goesel, 2017 IL 122046, ¶ 13. The intention of the legislature in enacting
BIPA—in the legislature’s own words—was to control a technology that no one yet
understood, but which had potentially far-reaching effects on Illinois citizens: “The full
ramifications of biometric technology are not fully known . . . The public welfare, security,
and safety will be served by regulating the collection, use, safeguarding, handling, storage,
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retention, and destruction of biometric identifiers and information.” 740 ILCS 14/5(f). The
only mechanism for enforcing that regulation is private enforcement by any person
“aggrieved by a violation of this Act,” who may seek liquidated damages. 740 ILCS 14/20.
Thus, if persons like amici whose information was collected, used, stored, handled, or
retained in violation of the Act are not “aggrieved,” there is no enforcement of the Act’s
provisions at all.
These protections are particularly critical in the employment context, where
employers increasingly require employees, as a condition of employment, to hand over
their immutable biometric identifiers and information for the purpose of identifying
themselves at the entrance to the workplace. To be clear, the legislature did not ban this
practice outright, and instead—as it often does—created baseline requirements to protect
employees: employers must advise employees, in writing, why they are collecting
biometric information (and, impliedly, limit their collection purposes to those they are
willing to disclose), get employee consent, store biometric data safely, and not sell that
data to the highest bidder. The Illinois legislature’s choice to provide these basic
protections, and a means to allow employees to enforce them, should not be thwarted by a
strained reading of the statute that obliterates any hope of enforcement until after the
employee has suffered irreparable consequential damages from which employees have “no
recourse.” See 740 ILCS 14/5(c). As the structure of the statute and the legislature’s stated
intentions make clear, prevention of harm—like so many other workplace statutes—is
BIPA’s purpose.
BIPA fills gaps and provides employees with statutory protections for biometric
data and information that may not exist in their employment contracts. The Illinois
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legislature has, in the past, enacted legislation to fill gaps and provide protections that may
be lacking in various private contracts. See, e.g., Uehara v. Schlade, 236 Ill. App. 3d 252,
260 (1st Dist. 1992) (recognizing that the provisions of the Condominium Property Act
which afford rights to condominium owners must be construed as a whole along with a
condominium’s by-laws). In other words, BIPA confers protections for biometric
identifiers and information upon employees and such protections fill gaps that may exist in
employment contracts.
The Illinois legislature plainly intended to ensure that the biometric data of Illinois
employees remain within their control and courts should give deference to this legislative
choice. As this Court has recognized that “[w]here the language of the act is certain and
unambiguous the only legitimate function of the courts is to enforce the law as enacted by
the legislature.” Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 84 (1970). Indeed, “[i]t is
never proper for a court to depart from plain language by reading into a statute exceptions,
limitations or conditions which conflict with the clearly expressed legislative intent.” Id.
BIPA was intended to provide protections for biometric privacy that were often lacking in
employment contracts.
It should be noted, as well, that compliance with the statute is exceedingly easy—
particularly in the employment context. Each amicus completed new-hire paperwork, and
it is routine in any employment to sign a number of forms at the onset, from tax forms to
an acknowledgement of receipt of the employee handbook and other documents. BIPA’s
disclosure and consent requirements are, just the same, easily complied with as part of
“onboarding” paperwork. Yet, the experience of each amicus with respect to their
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employer’s adherence to BIPA was exactly the same: their employer made no effort
whatsoever to comply.
The statute also does not create a substantial burden on the protection of biometric
data, as the employer need follow only its own standard of care and a general
reasonableness standard. 740 ILCS 14/15(e). Finally, it is difficult to imagine that the
prohibition on sale of biometric data in the employment context could interfere with any
legitimate use of an employee’s biometric information. 740 ILCS 14/15(d).
BIPA should be read to embrace its preventative purpose in avoiding harm to
employees like amici, who cannot otherwise negotiate for reasonable security of their
personal, sensitive and valuable biometric data. The statute’s enforcement provision does
not require, as the Second District found, some additional consequential damage aside from
violation of the statute, because that thwarts the intent of the legislature to provide
protections for consumers and workers before they are harmed by this new technology.
Accordingly, a person “aggrieved” is who the statute’s plain language and structure
suggest: a person whose right to the protections guaranteed by BIPA are violated.
CONCLUSION
The Court should reverse the judgment of the Appellate Court.
Date: July 3, 2018 Respectfully submitted,
By: James B. Zouras James B. Zouras Ryan F. Stephan Andrew C. Ficzko Haley R. Jenkins STEPHAN ZOURAS, LLP
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205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 (312) 233-1550 (312) 233-1560 f
[email protected] ATTORNEYS FOR PROPOSED AMICUS
WYESHA WATTS
By: Douglas M. Werman Douglas M. Werman Maureen A. Salas WERMAN SALAS, PC 77 W Washington St, Suite 1402 Chicago, IL 60602 (312) 419-1008 (312) 419-1025 f
[email protected] [email protected]
ATTORNEYS FOR PROPOSED AMICUS EMILY KIEFER
By: Alejandro Caffarelli Alejandro Caffarelli CAFFARELLI & ASSOCIATES, LTD 224 S. Michigan Avenue, Suite 300 Chicago, IL 60604 (312) 763-6880
ATTORNEYS FOR PROPOSED AMICI MAXIMO FERNANDEZ, ARTURO CORDONA, SERGIO DURAN, RODRIGO PUENTES AND ISAIAS VILLANUEVA
By: Kasif Khowaja Kasif Khowaja THE KHOWAJA LAW FIRM, LLC 70 E Lake St, 12th Floor Chicago, IL 60601 (312) 356-3200
ATTORNEYS FOR PROPOSED AMICI ROBIN RAPAI
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APPENDIX 1
Below is a list of amici and a brief description of their experiences and
circumstances that led to filing suit.
Wyesha Watts is a 28-year-old mother of a nine-month-old. Wyesha is pursuing her Master’s Degree in Health Administration. While Wyesha was expecting her child and earning an advanced degree, she simultaneously worked full time at Chicago Lakeshore Hospital as an hourly-paid youth mental health counselor. Not only did Wyesha work hard to provide for her family, but her work contributed to the community by assisting children of all ages while they battled mental illness and brain disorders. Throughout the duration of Wyesha’s nearly one-and-a-half years of employment, Chicago Lakeshore required Wyesha’s to provide her sensitive biometric data – specifically her fingerprints – which her employer not only collected but disseminated it to a third-party, Kronos, Inc. At no time did Chicago Lakeshore provide written information to its employees about the biometric information it was collecting or why, disclose the length of time their biometrics would be stored, identify other entities to which it would disseminate their biometrics, secure a release, or publicize a schedule for the ultimate destruction of their biometrics. Alarmed by Chicago Lakeshore’s conduct, Wyesha, on September 20, 2017, filed a class action lawsuit in the Circuit Court of Cook County on behalf of herself and other aggrieved similarly-situated employees. Watts v. Aurora Chicago Lakeshore Hospital, et al. Case No. 17 CH 12756 (Circuit Court of Cook County). Emily Kiefer started working as a server at a Bob Evans restaurant in Pekin, Illinois in September 2015. In approximately February 2017, the restaurant began to require its servers and other hourly employees to scan their fingerprints to record their work time and to enter customer orders into the point-of-sale system. Emily was required to scan her fingerprint dozens of times each shift as a condition of serving Bob Evans’ customers. For example, Bob Evans required Emily to scan her fingerprint to open a new check, to enter food and drink orders into the system, to print a check, to accept tables transferred to her from other servers, to split a check, to check the amount of credit card tips, and to check her schedule. Bob Evans then shared her fingerprint scans with Aloha, the point-of-sale system provider. Not until after Emily filed a lawsuit under BIPA did Bob Evans provide Emily with written materials about the collection, retention, use, destruction, or dissemination of her fingerprint. Bob Evans did not ask for or obtain Emily’s consent to collect or use her fingerprint or to share it with a third-party prior to implementing its fingerprinting policy. Emily filed her class action lawsuit on October 30, 2017. Kiefer. v. Bob Evans Farms, LLC and Bob Evans Restaurants, LLC, Case No. 17 L 112 (Tazewell County Ct.). Defendants removed the case to federal court in the Central District of Illinois. On May 23, 2018, the district court granted Emily’s motion to remand the case to state court.
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Maximo Fernandez, Arturo Cordona, Sergio Duran, Rodrigo Puentes, and Isaias Villanueva were long-term employees of Kerry Inc. -- a multi-national processed food conglomerate -- each having started with the Company between 1998 and 2004. They worked long hours as machine operators and none of them wanted to lose their jobs. So, these five men reluctantly felt compelled to comply when in 2011 Kerry implemented a biometric scanning timeclock system in each of its three Illinois locations and required all of its hundreds of workers to submit fingerprints in order to clock in and out each day. Yet Kerry, a large sophisticated corporation, made no effort to comply with the simple and straightforward notice and consent requirements of BIPA. The Company provided no information to its workers or the public about its biometric timekeeping system, and gave its workers no options or information when it came to the Company’s practice of collecting, storing, sharing, or [presumably] destroying their sensitive biometric identifiers. When Maximo, Arturo, Sergio, Rodrigo and Isaias found themselves abruptly terminated by Kerry in 2017, they became rightfully concerned about the integrity of their biometric information and filed a class action on behalf of themselves and all other similarly-situated workers in Illinois. Kerry, Inc. removed the case to federal court and has argued that the Illinois Court of Appeals’ decision in Rosenbach precludes Mr. Fernandez and his coworkers from asserting their claims under BIPA. Fernandez, et al. v. Kerry, Inc., Case No. 17 cv 8971 (United States District Court for the Northern District of Illinois). Robin Rapai is 63 years old. She has never married. She has supported herself working as a server for over 40 years. In September of 2017, she applied to work as a server at The Hyatt Lodge at McDonald’s campus in Oak Brook, Illinois. She began working at that location in late September of 2017. Hyatt required Robin and its other hourly employees to provide their fingerprints to Hyatt. Using biometrics, Hyatt converted the fingerprints as a means of identifying and tracking hourly employees work through a Kronos time keeping system. Hyatt required Robin and its other hourly employees to scan their fingerprints before they started and after they completed working each day. Hyatt never provided Robin or any other workers with written materials about the collection retention, use, destruction or dissemination of her fingerprint information as BIPA mandates. Furthermore, Hyatt never obtained the consent of its hourly employees to share the sensitive biometric information with Kronos. Rapai v. Hyatt Corporation, Case No. 17 CH 14483 (Circuit Court of Cook County).
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CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 341(a), 315(f), and 345(b).
The length of this brief, excluding the pages or words contained in the Rule 341(d) cover,
the Rule 341(h)(1) statement of points and authorities, the Rule 341(c) certificate of
compliance, the certificate of service, and those matters to be appended to the brief under
Rule 342(a), is 10 pages.
s/ James B. Zouras James B. Zouras STEPHAN ZOURAS, LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 (312) 233-1550 (312) 233-1560 f
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E-FILED7/5/2018 12:59 PMCarolyn Taft GrosbollSUPREME COURT CLERK
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No. 123186
IN THE
ILLINOIS SUPREME COURT
STACY ROSENBACH, as Mother and
Next Friend of Alexander Rosenbach,
individually and as the representative of a
class of similarly situated persons,
Plaintiff- Appellant,
v.
SIX FLAGS ENTERTAINMENT CORP.
and GREAT AMERICA LLC,
Defendants-Appellees.
On Appeal from the
Appellate Court of Illinois, Second
District, No. 2-17-317
There on appeal from the
Circuit Court of Lake County,
No. 2016 CH 13
The Honorable Luis A. Berrones,
Judge Presiding.
NOTICE OF FILING
PLEASE TAKE NOTICE that on Thursday, July 5th, I electronically filed the
attached Motion for Leave to File Amicus Motion for Leave to File Amicus Curiae Brief in
Support of the Position of the Appellant, Instanter and Brief Amici Curiae of Wyesha Watts,
Maximo Fernandez, Arturo Cordona, Sergio Duran, Rodrigo Puentes, Isaias Villanueva,
Emily Kiefer and Robin Rapai, In Support of Appellant with the Illinois Supreme Court via
Odyssey eFileIL. I hereby certify that filed copies will be served upon all counsel of record.
See attached Proof of Service.
Date: July 5, 2018 Respectfully submitted,
By: James B. Zouras
James B. Zouras
Ryan F. Stephan
Andrew C. Ficzko
Haley R. Jenkins
STEPHAN ZOURAS, LLP
205 North Michigan Avenue, Suite 2560
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E-FILED7/5/2018 12:59 PMCarolyn Taft GrosbollSUPREME COURT CLERK
2
Chicago, IL 60601
(312) 233-1550 (312) 233-1560 f
ATTORNEYS FOR PROPOSED AMICUS
WYESHA WATTS
By: Douglas M. Werman
Douglas M. Werman
Maureen A. Salas
WERMAN SALAS, PC
77 W Washington St, Suite 1402
Chicago, IL 60602
(312) 419-1008 (312) 419-1025 f
ATTORNEYS FOR PROPOSED AMICUS
EMILY KIEFER
By: Alejandro Caffarelli
Alejandro Caffarelli
CAFFARELLI & ASSOCIATES, LTD
224 S. Michigan Avenue, Suite 300
Chicago, IL 60604
(312) 763-6880
ATTORNEYS FOR PROPOSED AMICI
MAXIMO FERNANDEZ, ARTURO
CORDONA, SERGIO DURAN, RODRIGO
PUENTES AND ISAIAS VILLANUEVA
By: Kasif Khowaja
Kasif Khowaja
THE KHOWAJA LAW FIRM, LLC
70 E Lake St, 12th Floor
Chicago, IL 60601
(312) 356-3200
ATTORNEYS FOR PROPOSED AMICI
ROBIN RAPAI
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No. 123186
IN THE SUPREME COURT OF ILLINOIS
STACY ROSENBACH, as Mother and
Next Friend of Alexander Rosenbach,
individually and as the representative of a
class of similarly situated persons,
Plaintiff-Appellant,
v.
SIX FLAGS ENTERTAINMENT CORP.
and GREAT AMERICA LLC,
Defendants-Appellees.
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Appeal from the Appellate Court for the
Second District
There heard on appeal from the Circuit
Court of Lake County, Illinois
Hon. Luis A. Berrones, Judge Presiding
No. 2016-CH-13
PROPOSED ORDER
This cause coming to be heard on the Motion for Leave to File Brief Amicus Curiae in
Support of Stacey Rosenbach, Appellant, by Wyesha Watts, Maximo Fernandez, Arturo Cordona,
Sergio Duran, Rodrigo Puentes, Isaias Villanueva, Emily Kiefer and Robin Rapai, this Court
having reviewed the motion and proposed amicus brief and due notice having been given:
IT IS SO ORDERED:
The Motion is GRANTED / DENIED
Dated:
Justice
Proposed Order prepared by:
James B. Zouras
Registration No. 6230596
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