Six Flags Entertainment : Agrees To $36 Million BIPA Class Action Settlement

The parties to the seminal litigation on the application of the Illinois Biometric Information Privacy Act ("BIPA" or "the Act") have received preliminary approval for a proposed class action settlement with an anticipated value of $36 million. The class in Rosenbach v. Six Flags Entertainment Corp. is comprised of over 1.1 million members who the plaintiff alleges were required to provide fingerprint data for the use of repeat-entry passes to Great America, a Six Flags' amusement park in Gurnee, Illinois. The pass holders claimed that Six Flags' alleged use, storage, collection, and dissemination of their fingerprints was in violation of BIPA because it did not comply with the law's requirements for fair notice, consent and a written policy. If final approval is granted, the settlement would be the second-largest BIPA class action to resolve, trailing only Facebook's record $650 million settlement for 1.6 million members. See Patel v. Facebook, 18-15982, (9th Cir. Aug. 8, 2019), rev. den'd.

BIPA was enacted in 2008 to regulate the collection and storage of biometric identifiers and information by private entities. It provides that no private entity may collect, capture, purchase, receive through trade or otherwise obtain biometric information without first informing the subject, receiving a written release, and complying with rules for disclosure and eventual destruction. 740 ILCS 14/15. The Illinois Supreme Court has held - in this same case - that individuals do not need to allege that statutory violations have led to "actual injury or adverse effect." Rather, the mere collection and dissemination of biometric data in violation of the statute can constitute a violation and actionable harm. See Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. The statutory penalties are significant: $5,000 for each reckless or intentional violation of BIPA or, in the alternative, damages of $1,000 for each negligent violation of BIPA. 740 ILCS 14/20(1). Litigants are disputing the definition of what constitutes a "violation" and whether a violation occurs with the initial collection of the data or with each "swipe" of a finger or hand, or some other conduct.

The proposed $36 million settlement encompasses claims payments made to class members; costs of administering the settlement; a service award to the class representative; attorneys' fees of approximately $12 million; and cy pres payments. The distribution to the class will occur over "five annual installments," beginning in 2021 through 2025, with increasing contributions each year to total $36 million "until all eligible claimants have been fully paid or until the Settlement Fund is exhausted." The class includes customers who had their "finger scanned" when entering the parks between October 1, 2013 and December 31, 2018. Class members who scanned their finger between October 2013 and April 2016 will be entitled to "up to $200, payable in five installments" to sync with yearly contributions. Customers with a scan between May 2016 and December 2018, are entitled to up to $60, payable in five installments. Payments are per-person "without regard to the number of times the person visited the park or had scanned their finger." If the number of claims exceed the available pro rata shares for the respective groups, the class members' payments will be reduced proportionally. A final approval hearing is scheduled for October 29, 2021.

Since the filing of Rosenbach  and the court's ruling, there have been hundreds of lawsuits filed for BIPA violations in Illinois and beyond in state and federal courts, initiated by both customers of and workers employed by businesses subject to Illinois law. There is also pending insurance coverage litigation and even some initial rulings. See West Bend Mut. Ins Co. v. Krishna Schaumburg Tan, Inc.; Klaudia Sekura, 2021 IL 125978 (May 20, 2021) (Illinois Supreme Court held duty to defend was triggered in GL policy for customers' BIPA claims and TCPA-type exclusions did not prevent defense).

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Mr Vincent Tomkiewicz
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