Pending Federal Cases Could Have Implications For Future Litigation Under The Illinois Biometric Information Privacy Act

In two recent, related decisions, U.S. District Judge James Donato from the Northern District of California allowed plaintiffs to proceed on claims against Facebook under the Illinois Biometric Information Privacy Act ("BIPA"), finding that non-compliance with BIPA's notice and consent requirements provided sufficient injury for federal Article III standing. The decisions are Patel v. Facebook Inc., 2018 U.S. Dist. LEXIS 30727 and Gullen v. Facebook, Inc., 2018 U.S. Dist. LEXIS 34792. While these decisions add another arrow in the quiver of plaintiffs' attorneys filing BIPA class actions, as federal courts continue to reach different conclusions about the sufficiency of such allegations for Article III standing purposes, the fact that the plaintiffs do not allege any tangible injuries may still prove problematic for them as the cases progress.