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Erin Johnson is an attorney in the business & commercial litigation practice group in Dykema’s Chicago office.

Ms. Johnson’s practice includes litigation in Illinois and Indiana’s federal courts and Illinois’ state courts defending businesses against individual and class action lawsuits arising from Illinois BIPA and data protection laws, ADA, ADEA, as well as contractual disputes. Ms. Johnson also defends financial services providers against individual claims brought pursuant to RESPA and TILA.

Ms. Johnson is a member of the firm’s Privacy and Data Security team in which she assists in advising clients in the areas of data breach response and domestic and international data privacy law compliance projects. Ms. Johnson actively participates in pro bono work and has served as a Guardian ad Litem.

Last Friday, the Illinois Supreme Court delivered the highly anticipated Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, opinion. Businesses and consumers alike watched for the Court’s opinion regarding whether mere technical violations of the Illinois Biometric Information Privacy Act (“BIPA”) gave plaintiffs the requisite standing to seek damages under the statute. The Court heard the case after the Second District Appellate Court of Illinois ruled that an individual was not a “person aggrieved” by a technical violation and several other courts, both state and federal were split over the issue.  Rosenbach v. Six Flags Entertainment, 2017 IL App (2d) 170317.  In a fairly short opinion, focusing on statutory construction and the common meaning of the word “aggrieved,” the Illinois Supreme Court reversed the Appellate Court.  2019 IL 123186, ¶ 1. The Illinois Supreme Court held that an individual was in fact an “aggrieved person” under the statute where they are unable to show actual damage, but there has been a violation of the statute. The Court held, where there is no actual harm, the individual is entitled to statutory relief for each violation. In short, a technical violation is a violation.  The Illinois Supreme Court took a strong stance in that individuals should not have to wait for actual harm with respect to their biometric information and that businesses would lack the requisite motivation to comply with statutes like BIPA without such an interpretation. 
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Over the last several years, the emphasis on privacy and data protection has grown significantly. With the amount of data collected by companies and technology skyrocketing, the need to protect personal information has been at the forefront of states’ legislative agendas. While all 50 states now have breach notification statutes, states are now taking a closer look at issues such as tracking online behavior and the use of biometric data. What used to be futuristic props in sci-fi media, face and fingerprint scanners, are now part of everyday life and consumer transactions. Despite the increase in the use of biometric data, only three states, Washington, Texas and Illinois have passed legislation addressing biometric data.
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