                                  2018 IL App (1st) 180175

                                        No. 1-18-0175

                               Opinion filed September 28, 2018


                                                                        FOURTH DIVISION

                                              IN THE


                             APPELLATE COURT OF ILLINOIS


                                        FIRST DISTRICT



     KLAUDIA SEKURA, Individually and )                    Appeal from the Circuit Court
     on Behalf of All Others Similarly )                   of Cook County.
     Situated,                         )
                                       )
                                       )
            Plaintiff-Appellant,       )
                                       )                   No. 2016-CH-04945
            v.                         )
                                       )                   The Honorable
     KRISHNA SCHAUMBURG TAN,           )                   David B. Atkins,
     INC., an Illinois Corporation,    )                   Judge, presiding.
                                       )
            Defendant-Appellee.        )


       JUSTICE GORDON delivered the judgment of the court, with opinion. 

       Presiding Justice McBride and Justice Burke concurred in the judgment and opinion. 





                                           OPINION


¶1            In this appeal, plaintiff Klaudia Sekura appeals the dismissal, pursuant to section 2­

       615 of the Code of the Civil Procedure, of one of her causes of action. 735 ILCS 5/2-615
     No. 1-18-0175


         (West 2016). 1 Although only one cause of action was dismissed, the trial court made an

         express written finding that there was no just reason for delaying an appeal from its order

         dismissing count I. Thus, we have jurisdiction to hear this appeal pursuant to Illinois

         Supreme Court Rule 304(a) (eff. Mar. 8, 2016). 2

¶2               In count I, plaintiff Sekura alleged that defendant Krishna Schaumburg Tan, Inc.

         violated the Biometric Information Privacy Act (Act) (740 ILCS 14/1 et seq. (West 2016)) by

         collecting plaintiff’s fingerprints without providing the statutorily required disclosure

         concerning its retention policy and other topics, and by disclosing her fingerprints to an out­

         of-state third-party vendor. The purpose of the Act is to provide an “individual” with

         protections against his or her biometric information becoming “compromised” (740 ILCS

         14/5(c) (West 2016)), and the Act expressly authorizes a suit by “[a]ny person” who has been

         “aggrieved by a violation of this Act” (740 ILCS 14/20 (West 2016)).

¶3               Initially, the trial court denied defendant’s motion to dismiss, finding that under the

         plain language of the statute plaintiff was a person aggrieved by a violation of the Act.

         However, after the Second District found in Rosenbach v. Six Flags Entertainment Corp.,

         2017 IL App (2d) 170317, ¶ 28, 3 that standing under the Act required an “injury or adverse

         effect” in addition to a violation of the Act, the trial court felt compelled to reverse its prior




             1
                See Bogenberger v. Pi Kappa Alpha Corp., 2018 IL 120951, ¶ 23 (“The question presented by a
     motion to dismiss a complaint pursuant to section 2-615 of the Code is whether the complaint alleges
     sufficient facts that, if proved, would entitle the plaintiff to relief.”).
              2
                Supreme Court Rule 304(a) provides, in relevant part: “If multiple parties or multiple claims for
     relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer
     than all of the parties or claims only if the trial court has made an express written finding that there is no
     just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
              3
                 The Illinois Supreme Court granted a petition for leave to appeal in Rosenbach on May 30,
     2018. Rosenbach v. Six Flags Entertainment Corp., No. 123186 (Ill. May 30, 2018).
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     No. 1-18-0175


         ruling and to dismiss plaintiff’s claim under the Act. 4 Subsequently, a federal district court

         distinguished Rosenbach on the ground that disclosure to a third-party vendor, which is also

         alleged in our case, constituted such an injury or adverse effect. Dixon v. Washington & Jane

         Smith Community-Beverly, No. 17 C 80332018 WL 2445292, at *12 (N.D. Ill. May 31,

         2018).

¶4                 First, we find that the trial court was initially correct, and that, pursuant to both the

         plain language of the statute itself and its legislative history and purpose, plaintiff was a

         person aggrieved by a violation of the Act. Second, we find that, even if Rosenbach was

         correctly decided, it is distinguishable on the facts of this case, as the Dixon court similarly

         found, because disclosure to a third-party vendor is an injury or adverse effect. In addition,

         the mental anguish that plaintiff alleges in her complaint also constitutes an injury or adverse

         effect.

¶5                 For the following reasons, we reverse the trial court’s section 2-615 dismissal of

         count I and remand for further proceedings.

¶6                                             BACKGROUND

¶7                 In her complaint, filed April 7, 2016, plaintiff alleges that defendant operates a

         tanning salon in Schaumburg, Illinois as a franchisee of L.A. Tan Enterprises, Inc. (L.A.

         Tan). When a customer first purchases services at defendant’s tanning salon, he or she is

         enrolled in L.A. Tan’s national membership database, which allows him or her to use his or

         her membership at any of L.A. Tan’s locations. To enroll, customers are required to have



             4
              “Under the Illinois rule of stare decisis, a circuit court must follow the precedent of the appellate
     court of its district, if such precedent exists; if no such precedent exists, the circuit court must follow the
     precedent of other districts.” Schramer v. Tiger Athletic Ass’n of Aurora, 351 Ill. App. 3d 1016, 1020
     (2004).
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       No. 1-18-0175


          their fingerprints scanned. In addition, defendant discloses its customer fingerprint data to an

          out-of-state third party vendor, namely, SunLync.

¶8                Specifically, plaintiff alleges that, in April 2015, she purchased a membership with

          defendant in order to use its tanning salon and paid defendant on a monthly basis for the

          membership. When she purchased the membership with defendant, defendant then enrolled

          plaintiff in L.A. Tan’s corporate membership database and “required that she provide it with

          a scan of her fingerprint.” Every time she visited defendant’s tanning salon, “she was

          required to scan her fingerprint before using its services.”

¶9                Plaintiff alleges (1) that she has never been informed of the specific purposes or

          length of time for which defendant collected, stored or used her fingerprints, (2) that she has

          never been informed of any biometric data retention policy developed by defendant or

          whether defendant will ever permanently delete her fingerprint data, (3) that she has never

          been provided with nor signed a written release allowing defendant to collect or store her

          fingerprints, and (4) that she has never been provided with nor signed a written release

          allowing defendant to disclose her biometric data to SunLync to or any other third party.

¶ 10              Plaintiff further alleges that, in 2013, more than 65% of L.A. Tan’s salons were in

          foreclosure and that defendant’s customers have not been advised what would happen to their

          biometric data if defendant’s salon went out of business. 5

¶ 11              Plaintiff alleges that she becomes emotionally upset and suffers from mental anguish

          when she thinks about what would happen to her biometric data if defendant went bankrupt

          or out of business or if defendant’s franchisor, L.A. Tan, went bankrupt or out of business, or

          if defendant shares her biometric data with others. The allegation of mental anguish appears

              5
              At this early stage in the litigation, we take all well-pleaded facts in the complaint as true.
       Bogenberger, 2018 IL 120951, ¶ 23.
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       No. 1-18-0175


          in the “Factual Background” section of plaintiff’s complaint. Later, in count I, when plaintiff

          makes a specific claim about the Act, she states that she “incorporates the foregoing

          allegations as if fully set forth herein.”

¶ 12              Plaintiff alleged three causes of action: (1) violation of the Act, (2) unjust enrichment,

          resulting from defendant’s failure to comply with the Act, and (3) negligence. Only the first

          count is at issue in this appeal. In this first count, plaintiff alleges that defendant violated the

          Act because (1) it collected, used, stored and disclosed biometric information without first

          obtaining the written release that the Act requires; (2) it disclosed biometric information to

          SunLync, an out-of-state third party vendor; (3) it did not properly inform customers in

          writing that their biometric information was being collected and stored or of the specific

          purpose and length of time for which it was being collected and stored, as required by the

          Act; and (4) it did not provide a publicly available retention schedule or guidelines for

          permanently destroying its customers’ biometric information, as required by the Act.

¶ 13              Plaintiff filed her suit as a class action alleging that a numerous class of other

          customers suffered from the same practices.

¶ 14              Instead of filing an answer, defendant moved on July 1, 2016, to dismiss plaintiff’s

          first and second causes of action, for failing to allege sufficient facts to state a cause of action

          under the Act.

¶ 15              On February 9, 2017, the trial court granted defendant’s motion to dismiss count II,

          the unjust enrichment claim, but denied the motion with respect to count I, the count alleging

          violations of the Act that is the subject of this appeal.




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       No. 1-18-0175


¶ 16             In its memorandum opinion, the trial court observed that defendant had argued that

          count I “must be dismissed because the plaintiff is not ‘aggrieved’ as required by the statute

          itself.” In response to this argument, the trial court found:

                       “The language of [the Act] itself in this respect is brief and straightforward: it

                 provides a cause of action for ‘any person aggrieved by its violation.’ 740 ILCS 14/20

                 [(West 2016)]. The most natural reading of this language alone is broad, suggesting in

                 context that any person whose biometric data was mishandled in violation of [the

                 Act] has a claim based on such violation. The plaintiff directs the court to a long

                 history of cases which have generally reached a similar conclusion: the Illinois

                 Supreme Court has long held that “[a] person is prejudiced or aggrieved *** when a

                 legal right is invaded by the act complained of.’ Glos v. People, 259 Ill. 332, 340

                 (1913); see also Am. Surety Co. v. Jones, 384 Ill. 222, 229 (1943) (‘We think the

                 words “person who shall think himself aggrieved” mean a person who is immediately

                 aggrieved *** as by the refusal of a license *** not one who is only consequently

                 aggrieved.’ [(citing The King v. The Justices of Middlesex, 3 B. & A. 983 (1833))].

                 Courts have further applied this reasoning to privacy-related laws such as the federal

                 Video Privacy Protection Act [cite omitted], which similarly provides a claim for

                 ‘any person aggrieved by any act of a person in violation of this section.’ See e.g.

                 Austin-Spearman v. AMC Network Entertainment L.L.C., 98 F. Supp. 3d 662

                 (S.D.N.Y. 2015); see also In re Facebook Internet Tracking Litig., 140 F.Supp. 3d

                 922 (N.D. Ill. 2015) (applying similar reasoning and allowing suit under other federal

                 privacy laws without dangers).”

¶ 17         The trial court observed:


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       No. 1-18-0175


                       “Further, a review of other similar statutes provides further support for the broad

                  intended reach of [the Act]. As the plaintiff points out in its supplemental brief on

                  legislative history, both the Genetic Information Privacy Act, 410 ILCS 513/1, et

                  seq., [(West 2016)] and the AIDS Confidentiality Act, 410 ILCS 305/1, et seq.,

                  [(West 2016)] provide for a substantially identical, ‘any person aggrieved’ right of

                  recovery and have been interpreted as not requiring actual damages be pled. See e.g.

                  Doe v. Chand, 335 Ill. App. 3d 809, 822 (5th Dist. 2002). Those statutes were also

                  considered and amended during the same legislative session as enacted [the Act],

                  suggesting that the legislature intended to apply a similar framework.”

¶ 18                   Thus, on February 9, 2017, the trial court denied defendant’s section 2-615

          motion to dismiss count I. On July 28, 2017, the trial court denied defendant’s motion to

          certify a question for immediate interlocutory appeal pursuant to Illinois Supreme Court Rule

          308(a). On December 7, 2017, the trial court denied defendant’s motion to reconsider its

          denial for Rule 308(a) certification, but the trial court found that, “[i[n light of the pendency

          of multiple cases before the Illinois Appellate Court involving the same legal issues and the

          interests of judicial economy, *** a temporary stay of proceedings” was “appropriate.”

¶ 19              On January 5, 2018, defendant filed a motion asking the trial court to reconsider its

          February 9, 2017, denial in light of the Second District’s December 21, 2017, opinion in

          Rosenbach, 2017 IL App (2d) 170317.

¶ 20              On January 16, 2018, the trial court granted defendant’s motion to reconsider and

          reversed its earlier ruling. Since the order is short and it is the order being appealed from, we

          provide it here in full:




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       No. 1-18-0175


                       “This matter coming before the Court on Defendant’s Motion to Reconsider and

                 adequate notice having been given, and the Court being duly advised in the premises,

                       IT IS HEREBY ORDERED:

                       1. For the reasons outlined in Rosenbach v. Six Flags Entertainment Corp., No. 2­

                 17-0317 (2d Dist. 2017), Defendant’s Motion is GRANTED.

                       2. Count I of Plaintiff’s Complaint are [sic] hereby dismissed with prejudice and

                 judgment as to Count I entered in Defendant’s favor.

                       3. Pursuant to Ill. S. Ct. R. 304(a), the Court finds that there is no just reason for

                 delaying judgment as to Count I nor any just reason for delaying an appeal from this

                 order or the judgment as to Count I.

                       4. The stay shall remain in place as to Count III and the Parties shall report how

                 they wish to proceed within 30 days.”

¶ 21             On January 22, 2018, plaintiff filed a notice of appeal stating that she was appealing

          “the Janauary 16, 2018[,] order entering final judgment on Count One of her complaint.”

          This appeal then followed.

¶ 22                                             ANALYSIS

¶ 23             Plaintiff appeals the section 2-615 dismissal of count I of her complaint. For the

          following reasons, we reverse and remand for further proceedings.

¶ 24                                   I. Section 2-615 Motion to Dismiss

¶ 25          “The question presented by a motion to dismiss a complaint pursuant to section 2-615 of

          the Code is whether the complaint alleges sufficient facts that, if proved, would entitle the

          plaintiff to relief.” Bogenberger, 2018 IL 120951, ¶ 23. “Such a motion challenges only the

          legal sufficiency of the complaint.” Bogenberger, 2018 IL 120951, ¶ 23.

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       No. 1-18-0175


¶ 26               “The critical inquiry is whether the allegations of the complaint, when construed in

           the light most favorable to the plaintiff, are sufficient to state a cause of action upon which

           relief may be granted.” Bogenberger, 2018 IL 120951, ¶ 23. In making this determination,

           we must take all well-pleaded facts in the complaint as true. Bogenberger, 2018 IL 120951,

           ¶ 23. An appellate court will review de novo the trial court’s order granting a section 2-615

           dismissal. Bogenberger, 2018 IL 120951, ¶ 23. De novo review means that an appellate court

           performs the same analysis that a trial judge would perform. People v. Begay, 2018 IL App

           (1st) 150446, ¶ 34.

¶ 27               The issue in this case rests solely on the complaint, since no discovery has begun and

           no answer was filed.

¶ 28                                                  II. Waiver

¶ 29               As a preliminary matter, defendant argues that the only issue properly before this

           court is whether a harm or injury, in addition to the violation of the Act itself, is required in

           order to have standing to sue under the Act. We agree that this issue is the only issue before

           us. 6

¶ 30               Defendant argues that we should disregard two issues on the ground that plaintiff

           waived them by not raising them before the trial court: (1) whether the legislature intended to

           permit claims for improper collection or mishandling of biometric data and (2) any

           arguments concerning Rosenbach.




               6
                At oral argument before this court, defendant tried to raise for the first time an argument that its
       use of plaintiff’s fingerprints qualified under a statutory exemption for business transactions. New and
       novel arguments cannot be raised for the first time at oral argument. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1,
       2017) (“Points not argued are waived and shall not be raised *** in oral argument, or on petition for
       rehearing.”).
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       No. 1-18-0175


¶ 31              First, defendant argues that plaintiff alleges “for the first time on appeal” that

          defendant mishandled its customers’ biometric data. However, plaintiff’s complaint

          repeatedly alleges that defendant collects, stores, uses, and discloses its customers’ biometric

          data in violation of the Act and, in particular, improperly disclosed the data to an out-of-state

          third-party vendor. Thus, the allegation of “mishandling” data, i.e., handling it in a way that

          fails to comport with the Act, is squarely in front of us, as we consider whether the

          allegations of plaintiff’s complaint state a cause of action. Bogenberger, 2018 IL 120951,

          ¶ 23 (“The question presented by a motion to dismiss a complaint pursuant to section 2-615

          of the Code is whether the complaint alleges sufficient facts that, if proved, would entitle the

          plaintiff to relief.”).

¶ 32              Second, defendant argues that, by not filing a brief in response to defendant’s motion

          to reconsider in light of the Rosenbach decision, plaintiff has waived any arguments

          concerning Rosenbach. However, we could not fully consider the issue that defendant

          concedes is in front of us without considering the Rosenbach opinion. Thus, we will conduct

          our own reading of that opinion to decide whether we find it persuasive. In addition, while

          arguments raised for the first time in a motion to reconsider in the trial court are usually

          forfeited on appeal (Caywood v. Gossett, 382 Ill. App. 3d 124, 134 (2008)), a winning party

          is not required to file a response to a reconsideration motion, and defendant does not cite a

          rule or statutory section that requires one. The law generally does not require a party to file a

          document that will have no effect, and in the case at bar, the trial court had no choice but to

          follow the only available appellate court decision. “Under the Illinois rule of stare decisis, a

          circuit court must follow the precedent of the appellate court of its district, if such precedent




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       No. 1-18-0175


          exists; if no such precedent exists, the circuit court must follow the precedent of other

          districts.” Schramer, 351 Ill. App. 3d at 1020.

¶ 33             Lastly, we observe that no discovery has occurred on this issue or on any other issue

          in the case, that no answer has been filed, and that our standard of review is de novo and we

          owe no deference to the trial court’s ruling. Thus, defendant suffers no prejudice from

          arguments allegedly raised for the first time in plaintiff’s opening appellate brief, concerning

          the purely legal issue that defendant concedes is squarely before us. Begay, 2018 IL App

          (1st) 150446, ¶ 34 (de novo review means that an appellate court performs the same analysis

          that a trial judge would perform).

¶ 34                                             II. Standing

¶ 35             Defendant claims that, without an injury beyond the statutory violation, plaintiff lacks

          standing to pursue a claim under the Act.

¶ 36             “The purpose of the standing doctrine is to ensure that courts are deciding actual,

          specific controversies and not abstract ones.” Maschek v. City of Chicago, 2015 IL App (1st)

          150520, ¶ 84 (citing In re M.I., 2013 IL 113776, ¶ 32). For example, “[i]f a person cannot

          demonstrate that a statute was applied unconstitutionally to himself, then he may not

          challenge the statute on the ground that ‘ “it might conceivably be applied unconstitutionally

          in some hypothetical case” ’ against someone else.” Maschek, 2015 IL App (1st) 150520,

          ¶ 84 (quoting In re M.I., 2013 IL 113776, ¶ 32, quoting People v. Wisslead, 108 Ill. 2d 389,

          397 (1985)).

¶ 37             “Under Illinois law, lack of standing is an affirmative defense, which is the

          defendant’s burden to plead and prove.” Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d

          217, 252 (2010).


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       No. 1-18-0175


¶ 38                                    III. Statutory Interpretation

¶ 39             This appeal requires us to interpret the words of the Act and decide what the Act

          requires.

¶ 40             “With statutory construction, our primary goal is to ascertain the legislat[ors’] intent,

          and the best indication of their intent is the plain and ordinary meaning of the words they

          chose to use.” People v. Miles, 2017 IL App (1st) 132719, ¶ 25; State ex rel. Pusateri v.

          Peoples Gas Light & Coke Co., 2014 IL 116844, ¶ 8 (citing Citizens Opposing Pollution v.

          ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23).

¶ 41             “When a statute does not define its own terms, a reviewing court may use a dictionary

          to ascertain the plain and ordinary meaning of those terms.” Maschek, 2015 IL App (1st)

          150520, ¶ 56 (citing People v. McChriston, 2014 IL 115310, ¶ 15, and People v. Bingham,

          2014 IL 115964, ¶ 55); see also People v. Chapman, 2012 IL 111896, ¶ 24 (“When a statute

          contains a term that is not specifically defined, it is entirely appropriate to look to the

          dictionary to ascertain the plain and ordinary meaning of the term.”). “[C]ourts and lawyers

          frequently rely on Black’s Law Dictionary to define terms ***.” Maschek, 2015 IL App (1st)

          150520, ¶ 57 (citing McChriston, 2014 IL 115310, ¶ 17).

¶ 42             “When interpreting a statute, we do not read a portion of it in isolation; instead, we

          read it in its entirety, keeping in mind the subject it addresses and the drafters’ apparent

          objective in enacting it.” Miles, 2017 IL App (1st) 132719, ¶ 25; People v. Chatman, 2016 IL

          App (1st) 152395, ¶ 30. When considering the drafters’ objective, we examine the problems

          that the legislature intended to remedy with the law and the consequences of construing it

          one way or the other. People v. Almond, 2015 IL 113817, ¶ 34 (we “consider the reason for

          the law and the problems intended to be remedied”); People v. Eppinger, 2013 IL 114121,


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       No. 1-18-0175


          ¶ 21 (legislative intent may be ascertained by considering “the statute in its entirety, its nature

          and object, and the consequences of construing it one way or the other”).

¶ 43             “In addition, whenever possible, every word, clause, and sentence is to be given

          reasonable meaning and shall not be treated as superfluous or rendered void.” Mulry v.

          Berrios, 2017 IL App (1st) 152563, ¶ 9; People v. Harmon, 2015 IL App (1st) 122345, ¶ 68

          (“one of the principles of statutory interpretation is that we should give effect to every word

          and section of the statute”); Speedy Gonzalez Landscaping, Inc. v. O.C.A. Construction, Inc.,

          385 Ill. App. 3d 699, 701 (2008) (“ ‘If possible, courts must give effect to every word,

          clause, and sentence and may not read a statute so as to render any part, inoperative,

          superfluous, or insignificant.’ ” (quoting Newland v. Budget Rent-A-Car Systems, Inc., 319

          Ill. App. 3d 453, 456 (2001)).

¶ 44             Where the language is plain and unambiguous, we apply the statute without resort to

          further aids of statutory interpretation. In re Lance H., 2014 IL 114899, ¶ 11; Krohe v. City of

          Bloomington, 204 Ill. 2d 392, 395 (2003); Maschek, 2015 IL App (1st) 150520, ¶ 44 (“If the

          statutory language is clear, we must apply it, without resort to any aids of statutory

          construction.”). “If, and only if, the statutory language is ambiguous, we may look to other

          sources to ascertain the legislature’s intent.” Maschek, 2015 IL App (1st) 150520, ¶ 44

          (citing Krohe, 204 Ill. 2d at 395). “These other sources include primarily the statute’s

          legislative history and debates.” Maschek, 2015 IL App (1st) 150520, ¶ 44 (citing Krohe, 204

          Ill. 2d at 398). “When interpreting an ambiguous phrase in a statute, our supreme court looks

          especially to the remarks of a bill’s sponsor.” Maschek, 2015 IL App (1st) 150520, ¶ 62

          (citing Krohe, 204 Ill. 2d at 398); see also In re Pension Reform Litigation, 2015 IL 118585,

          ¶ 68 (giving more weight to the remarks of “the chief sponsor of the legislation”); Julie Q. v.


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       No. 1-18-0175


          Department of Children & Family Services, 2013 IL 113783, ¶ 31 (quoting the sponsor’s

          remarks when interpreting a statute). “The remarks made immediately prior to passage are

          particularly important.” Maschek, 2015 IL App (1st) 150520, ¶ 62 (citing Poris v. Lake

          Holiday Property Owners Ass’n, 2013 IL 113907, ¶¶ 51-53 (quoting the sponsors’ remarks in

          order to interpret a statute and noting that, following these remarks, the bill passed)).

¶ 45              “[W]hile we may turn to other codes, we should only do so when the codes share

          similar goals and related subjects.” Maschek, 2015 IL App (1st) 150520, ¶ 71 (citing Carter

          v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37). A statute should be “ ‘construed in

          conjunction with other statutes touching on the same or related subjects’ ” “ ‘considering the

          reason and necessity for the law, the evils to be remedied, and the objects and purposes to be

          obtained.’ ” Maschek, 2015 IL App (1st) 150520, ¶ 71 (quoting Carter, 2012 IL 113204,

          ¶ 37); People v. Steppan, 105 Ill. 2d 310, 321 (1985) (“Because the statutes under

          consideration have different goals and purposes,” they need not be compared); People v.

          Williams, 376 Ill. App. 3d 875, 892 (2007) (considering “similar statutes”).

¶ 46              Like section 2-615 dismissals, questions of statutory interpretation are also reviewed

          de novo. People v. Schlosser, 2017 IL App (1st) 150355, ¶ 28; Chatman, 2016 IL App (1st)

          152395, ¶ 23. As we observed above, “[d]e novo review means that we will perform the

          same analysis a trial court would perform.” Trzop v. Hudson, 2015 IL App (1st) 150419,

          ¶ 63.

¶ 47                                              IV. The Act

¶ 48              At issue in this appeal is the meaning of the word “aggrieved” as used in the Act. The

          word “aggrieved” appears in section 20 of the Act. Since section 20 is the section primarily

          at issue in this appeal, we provide it below in full:


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        No. 1-18-0175


                  “Right of Action. Any person aggrieved by a violation of this Act shall have a right of

                  action in a State circuit court or as a supplemental claim in federal district court

                  against an offending party. A prevailing party may recover for each violation:

                           (1) against a private entity that negligently violates a provision of this Act,

                        liquidated damages of $1,000 or actual damages, whichever is greater;

                           (2) against a private party that intentionally or recklessly violates a provision

                        of this Act, liquidated damages of $5,000 or actual damages, whichever is greater;

                           (3) reasonable attorneys’ fees and costs, including expert witness fees and

                        other litigation expenses; and

                           (4) other relief, including an injunction, as the State or federal court may deem

                        appropriate.” 740 ILCS 14/20 (West 2016).

¶ 49                                            A. Plain Language

¶ 50              The plain language of the Act states that any person “aggrieved by a violation of this

           Act” may sue. 740 ILCS 14/20 (West 2016). It does not state that a person aggrieved by a

           violation of this Act—plus some additional harm—may sue. If the drafters had intended to

           limit the pool of plaintiffs to those plaintiffs who had been both aggrieved by a violation of

           the Act and aggrieved by some additional harm or injury, they could have easily stated that.

           However, they chose to state only “a violation of this Act.” 740 ILCS 14/20 (West 2016).

           Thus, the plain language of the Act supports plaintiff’s right to sue. See, e.g., Miles, 2017 IL

           App (1st) 132719, ¶ 25 (“the best indication” of the drafters’ intent is “the plain and ordinary

           meaning of the words they chose to use”); supra ¶ 40.

¶ 51	             The Act, quoted above, also provides for either “liquidated damages” or “actual

           damages,” thereby establishing that actual damages are not required to obtain relief under the

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          Act. 740 ILCS 14/20 (West 2016). Thus, the overall structure of the Act also supports

          plaintiff’s right to sue. See, e.g., Miles, 2017 IL App (1st) 132719, ¶ 25 (when interpreting a

          statute, “we read it in its entirety”); supra ¶ 42.

¶ 52              In Black’s Law Dictionary, the first definition of “aggrieved” is “having legal rights

          that are adversely affected.” Black’s Law Dictionary 73 (8th ed. 2004); see, e.g., Maschek,

          2015 IL App (1st) 150520, ¶ 57 (courts “frequently rely on Black’s Law Dictionary”); supra

          ¶ 41. In other words, the Act provides plaintiff with “legal rights” that she alleges were

          “adversely affected” by the Act’s violation. Defendant quotes this definition in its brief to

          this court, and we agree that it is persuasive. But applying the words of this definition to the

          facts of this case supports plaintiff’s right to sue.

¶ 53              Similarly, while the first definition in Dictionary.com is “wronged,” the second

          definition, which is specifically marked “Law,” is “deprived of legal rights.”

          http://www.dictionary.com/browse/aggrieved              (last   visited   Sept.   27,     2018)

          [https://perma.cc/UBX9-JG7S]; see, e.g., Chapman, 2012 IL 111896, ¶ 25 (consulting a

          dictionary to define a statutory term); Maschek, 2015 IL App (1st) 150520, ¶ 56 (“a

          reviewing court may use a dictionary to ascertain the plain” meaning of a word); supra ¶ 41.

          Plaintiff alleges that the Act provided her with “legal rights,” and that she was “deprived of

          [these] legal rights” by defendant’s violation of the Act. Again, applying the words of this

          definition supports plaintiff’s right to sue.

¶ 54              Defendant argues that interpreting the Act to require only a violation for standing

          renders the word “aggrieved” superfluous. E.g., Mulry, 2017 IL App (1st) 152563, ¶ 9 (no

          word shall “be treated as superfluous”); supra ¶ 43. Defendant argues that the use of the

          word “aggrieved” shows that the Act requires something more than just a violation.


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          However, defendant’s interpretation requires a tortured reading of the following sentence:

          “[a]ny person aggrieved by a violation of this Act shall have a right of action.” 740 ILCS

          14/20 (West 2016). The word “aggrieved” is what connects “person” to the “Act” and, thus,

          it is not superfluous. In other words, it cannot be that any person, who finds a violation of the

          Act, may sue. Instead, it must be a person whose privacy rights under the Act were

          “aggrieved by” the violation. Thus, we are not persuaded by defendant’s argument that the

          word “aggrieved” is superfluous unless we require additional harm.

¶ 55             Defendant argues that “the status of ‘a person aggrieved’ is separate from the

          ‘violation’ of the statute.” Defendant argues that section 20 “separates a violation from the

          status of a subject being a ‘person aggrieved’ by that violation.” Again, defendant’s argument

          requires a tortured reading of the following, fairly simple sentence: “Any person aggrieved

          by a violation of this Act shall have a right of action.” 740 ILCS 14/20 (West 2016). The

          words “aggrieved by” connect “person” to the “violation,” rather than separate them. This

          can be easily found if you try to remove the words “aggrieved by” from the sentence. If you

          removed the words “aggrieved by,” you would have to replace them with something. You

          could not state: “Any person *** a violation of this Act shall have a right of action.” 740

          ILCS 14/20 (West 2016). That line would make no sense. You would have to replace the

          words “aggrieved by” with another phrase connecting “person” to “violation,” such as

          “subjected to.” Thus, the words “aggrieved by” are neither superfluous nor a divider.

¶ 56                                 B. Legislative Purpose and History

¶ 57             If the words of a statute are ambiguous, and only if they are ambiguous, may we turn

          to other aides, such as legislative history. E.g., Maschek, 2015 IL App (1st) 150520, ¶ 44; see

          also supra ¶ 44. While we do not find that the words were ambiguous, we do find that the


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          legislative purpose and history further supports our conclusion that plaintiff has standing to

          sue under the Act.

¶ 58             The legislative purpose is easy to discern because the legislators provided a section in

          the Act entitled: “Legislative findings; intent.” 740 ILCS 14/5 (West 2016). In this section,

          the drafters explained that “[a]n overwhelming majority of the public” are apprehensive

          about the use of biometric identifiers and, as a result, they are “deterred from partaking in

          biometric identifier-facilitated transactions.” 740 ILCS 14/5(d) (West 2016). Acknowledging

          the reasonableness of these fears, the drafters found that “[t]he full ramifications of biometric

          technology are not fully known.” 740 ILCS 14/5(f) (West 2016). A biometric identifier,

          “once compromised,” leaves an individual with no replacement options and, thus, “no

          recourse.” 740 ILCS 14/5(c) (West 2016). Thus, the drafters concluded that the public would

          “be served by regulating the collection, use, safeguarding, handling, storage, retention and

          destruction of biometric identifiers and information.” 740 ILCS 14/5(g) (West 2016). Putting

          these regulations in place would further the selection by “[m]ajor national corporations” of

          “the City of Chicago and other locations in this State as pilot testing sites for new

          applications   of    biometric-facilitated   financial   transactions,   including   finger-scan

          technologies.” 740 ILCS 14/5(b) (West 2016).

¶ 59             Based on the above findings, defendant argues that the Act provides redress only once

          a person’s biometric data has actually been compromised and that a person may then sue for

          the “resulting harm.” However, the whole purpose of the Act is to prevent any harm from

          occurring in the first place, thereby reassuring the public, who will then be willing to

          participate in this new technology. Waiting until the harm has already occurred is too late

          because, as the drafters found, once a person’s biometric identifiers have been compromised,


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          there is simply “no recourse” for prevention. 740 ILCS 14/5(c) (West 2016). A person cannot

          obtain new DNA or new fingerprints or new eyeballs for iris recognition, at least not easily

          or not at this time. Replacing a biometric identifier is not like replacing a lost key or a

          misplaced identification card or a stolen access code. The Act’s goal is to prevent

          irretrievable harm from happening and to put in place a process and rules to reassure an

          otherwise skittish public. Forcing a member of the public to wait until after an irretrievable

          harm has already occurred in order to sue would confound the very purpose of the Act. Thus,

          the stated findings of the drafters do not support defendant’s claims and argument.

¶ 60             In addition, the trial court ordered the parties on December 8, 2016, to file

          supplemental briefs specifically “concerning the legislative history” of the Act, and both

          parties complied. Thus, the issue of legislative history has been thoroughly briefed and

          argued on the record before us.

¶ 61             In its supplemental brief to the trial court, defendant observed that “the legislative

          history is notably silent on the intent and purpose of Section 20,” which provides the right to

          sue and contains the disputed “aggrieved by” language. Similarly, in her supplemental brief

          to the trial court, plaintiff agreed that section 20 “received little to no comment in the floor

          debates on the bill.”

¶ 62             In their supplemental briefs, both parties paid particular attention to the remarks of

          Representative Kathleen Ryg, the House sponsor, immediately before the House’s passage of

          the Act. E.g., Maschek, 2015 IL App (1st) 150520, ¶ 62 (a reviewing court pays particular

          attention to the remarks of a bill’s sponsor and to the remarks immediately prior to passage);

          see also supra ¶ 44.




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¶ 63             Representative Ryg explained that the Act “sets collection and retention standards

          while prohibiting the sale of biometric information.” 95th Ill. Gen. Assem., House

          Proceedings, May 30, 2008, at 249 (statement of Representative Ryg). She explained the

          impetus for the Act as follows:

                 “This Bill is especially important because one of the companies that has been piloted

                 in Illinois, Pay By Touch, is the largest fingerprint scan system in Illinois and they

                 have recently filed for bankruptcy and wholly stopped providing verification services

                 in March of 2008. This pullout leaves thousands of customers from Albertson’s, Cub

                 Foods, Farm Fresh, Jewel Osco, Shell, and Sunflower Market, wondering what will

                 become of their biometric and financial data. The California Bankruptcy Court

                 recently approved the sale of their Pay By Touch database. So, we are in very serious

                 need of protections for the citizens of Illinois when it comes to biometric information.

                 I know of no opposition to the legislation and I’ll attempt to answer any questions.”

                 95th Ill. Gen. Assem., House Proceedings, May 30, 2008, at 249 (statement of

                 Representative Ryg).

          There were no questions and no discussion. The bill proceeded immediately to a vote and

          passed the House. It was subsequently passed by the Senate on July 10, 2008, and signed into

          law by the governor on October 3, 2008.

¶ 64             Representative Ryg’s remarks establish that the primary impetus behind the bill was

          to alleviate the fears of “thousands of customers *** wondering what will become of their

          biometric and financial data” and to provide them with protections. 95th Ill. Gen. Assem.,

          House Proceedings, May 30, 2008, at 249 (statement of Representative Ryg). Similarly,

          plaintiff’s complaint alleges that plaintiff “experiences mental anguish and injury when


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       No. 1-18-0175


          thinking about what would happen to her biometric data” if defendant went bankrupt or

          shared her biometric data. Thus, plaintiff’s allegations, which we must accept as true at this

          early stage of the litigation, are similar to the fears that the Act’s sponsor sought to allay with

          the Act’s passage. See Bogenberger, 2018 IL 120951, ¶ 23 (when determining whether the

          allegations of the complaint, when construed in the light most favorable to the plaintiff, are

          sufficient to state a cause of action, we must take all well-pleaded facts in the complaint as

          true).

¶ 65               Defendant argues that Representative Ryg’s remarks establish that the drafters’

          primary concern was the sale of biometric data and that, since plaintiff has not alleged “the

          use of biometric data by unintended parties,” she lacks the type of injury needed for suit.

          Although plaintiff has not alleged a sale, she has alleged that defendant disclosed its

          customers’ biometric data to a third-party out-of-state vendor. Thus, even if we were

          persuaded by defendant’s argument, we must find that plaintiff’s allegations of disclosure,

          which defendant has yet to deny, satisfied that concern.

¶ 66                                           C. Other Statutes

¶ 67               The parties cite other statutes that use the term “aggrieved.” However, most of these

          statutes do not share similar goals or related subjects. “[W]hile we may turn to other codes,

          we should only do so when the codes share similar goals and related subjects.” Maschek,

          2015 IL App (1st) 150520, ¶ 71 (a statute should be “ ‘construed in conjunction with other

          statutes touching on the same or related subjects’ ” “ ‘considering the reason and necessity

          for the law, the evils to be remedied, and the objects and purposes to be obtained’ ” (quoting

          Carter, 2012 IL 113204, ¶ 37)); Steppan, 105 Ill. 2d at 321 (“Because the statutes under




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        No. 1-18-0175


           consideration have different goals and purposes,” they need not be compared); Williams, 376

           Ill. App. 3d at 892 (considering “similar statutes”).

¶ 68              Of the various statutes, the closest one for comparison’s sake is the AIDS

           Confidentiality Act (410 ILCS 305/1 et seq. (West 2016)). Its “Right of Action” section (410

           ILCS 305/13 (West 2016)) is virtually identical to the “Right of Action” section, or section

           20, in the Act at issue (740 ILCS 14/20 (West 2016)). Section 13 in the AIDS Confidentiality

           Act provides in full:

                  “Any person aggrieved by a violation of this Act or of a regulation promulgated

                  hereunder shall have a right of action in the circuit court and may recover for each

                  violation:

                        (1) Against any person who negligently violates a provision of this Act or the

                  regulations promulgated hereunder, liquidated damages of $2,000 or actual damages,

                  whichever is greater.

                        (2) Against any person who intentionally or recklessly violates a provision of this

                  Act or the regulations promulgated hereunder, liquidated damages of $10,000 or

                  actual damages, whichever is greater.

                        (3) Reasonable attorney fees.

                        (4) Such other relief, including an injunction, as the court may deem appropriate.”

                  410 ILCS 305/13 (West 2016).

¶ 69	             In comparing section 13 of the AIDS Confidentiality Act with section 20 (quoted

           supra ¶ 48), we observe that the two sections are quite similar. Both sections provide a right

           of action to “[a]ny person aggrieved by a violation of this Act.” 410 ILCS 305/13 (West

           2016); 740 ILCS 14/20 (West 2016). Both sections provide recovery against a person who

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       No. 1-18-0175


          “negligently violates a provision of this Act” or “intentionally or recklessly violates a

          provision of this Act.” 410 ILCS 305/13(1), (2) (West 2016); 740 ILCS 14/20(1), (2) (West

          2016). Both provide for liquidated or actual damages, “whichever is greater.” 410 ILCS

          305/13(1), (2) (West 2016); 740 ILCS 14/20(1), (2) (West 2016). Both sections provide for

          reasonable attorney fees, as well as “other relief, including an injunction.” 410 ILCS

          305/13(3), (4) (West 2016); 740 ILCS 14/20(3), (4) (West 2016).

¶ 70             In addition, the two statutes have similar purposes. Like the Act at issue in our case,

          the AIDS Confidentiality Act also has a section stating its purpose and legislative findings.

          410 ILCS 305/2 (West 2016). The purpose of the AIDS Confidentiality Act is to relieve the

          fears of people about being tested for AIDS and to protect against unauthorized disclosure

          (410 ILCS 305/2 (West 2016) (members of the public “fear that test results *** will be

          disclosed without their intent)); similarly, the purpose of the Act at issue is to relieve the

          fears of people in using and relying on new technology and to protect against unauthorized

          disclosure. 740 ILCS 14/5 (West 2016); supra ¶¶ 58-59. In both situations, disclosure can

          create irreparable harm.

¶ 71             Faced with a similar “right of action” section, the appellate court found that, in a suit

          under the AIDS Confidentiality Act, a person could recover liquidated damages without

          proof of actual damages. Doe v. Chand, 335 Ill. App. 3d 809, 822 (2002). In the two-to-one

          decision, all three justices agreed on that point. The only point of difference was, if a plaintiff

          claimed actual damages, whether those actual damages had to be shown by evidence such as

          “medical bills, lost wages, or other out-of-pocket expenses” (Chand, 335 Ill. App. 3d at 822)

          or whether actual damages could include compensation “for the mental anguish” caused by

          the unauthorized disclosures (Chand, 335 Ill. App. 3d at 823 (Kuehn, J., concurring in part


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       No. 1-18-0175


          and dissenting in part)). However, the panel unanimously agreed that a person could recover

          liquidated damages without proof of actual damages. Chand, 335 Ill. App. 3d at 824 (Kuehn,

          J., concurring in part and dissenting in part) (“I concur in all other aspects of the majority

          opinion.”).

¶ 72             Thus, our review of a statute that is similar in purpose and wording to the Act at issue

          further supports our finding that plaintiff may sue for a violation of the Act without proving

          additional harm.

¶ 73                                           V. Rosenbach

¶ 74             To date, the only Illinois state appellate court panel to discuss the meaning of

          “aggrieved by” in section 20 of the Act is the Second District case of Rosenbach. In

          Rosenbach, plaintiff alleged that, when her minor son purchased a season pass for a Great

          America theme park, defendant Six Flags Entertainment Corp. fingerprinted him without

          obtaining any consent or disclosing its plan for the collection, storage, use or destruction of

          its customers’ biometric identifiers. Rosenbach, 2017 IL App (2d) 170317, ¶ 1. Plaintiff

          alleged that, if she had known, she would not have allowed her son to purchase the pass.

          Rosenbach, 2017 IL App (2d) 170317, ¶ 1. The trial court in Rosenbach denied defendant’s

          motion to dismiss but then certified questions for review that asked whether a person

          aggrieved by a violation of the Act must allege an injury or harm in addition to the violation

          of the Act. Rosenbach, 2017 IL App (2d) 170317, ¶ 15. The Rosenbach court found that it

          had to find that an additional harm was required; otherwise the word “aggrieved” in the Act

          would be rendered superfluous. Rosenbach, 2017 IL App (2d) 170317, ¶ 23. We already

          examined this argument above (supra ¶¶ 54-55) and found it unpersuasive.




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¶ 75             The Rosenbach court concluded: “If a person alleges only a technical violation of the

          Act without alleging any injury or adverse effect, then he or she is not aggrieved and may not

          recover under any of the provisions in section 20. We note, however, that the injury or

          adverse effect need not be pecuniary.” Rosenbach, 2017 IL App (2d) 170317, ¶ 28; see

          Chand, 335 Ill. App. 3d at 823 (Kuehn, J., concurring in part and dissenting in part) (actual

          damages may include compensation “for the mental anguish” caused by unauthorized

          disclosures).

¶ 76             Even if we were persuaded by Rosenbach’s finding, we would still conclude that

          plaintiff’s allegations in the case at bar were sufficient to support a cause of action. Unlike

          the plaintiff in Rosenbach, plaintiff in our case did allege an “injury or adverse effect,” as

          Rosenbach required. Rosenbach, 2017 IL App (2d) 170317, ¶ 28. Specifically, she alleged

          (1) an injury to her legal right to privacy of her own biometric information; by the disclosure

          of this information to an out-of-state third party vendor, and (2) mental anguish.

¶ 77             As to the first, the Act safeguards an individual’s right to privacy with respect to

          biometric information, by prohibiting private entities from obtaining such information

          without a written release from the subject. 740 ILCS 14/15(b) (West 2016). As we discuss in

          further detail below (infra ¶ 79), a federal district court found both that the Act “create[d] a

          legal right to privacy in personal biometric data” (Dixon, 2018 WL 2445292, *9) and that the

          disclosure to a third-party out-of-state vendor constituted an injury to this right and thereby

          conferred standing, even under Rosenbach (Dixon, 2018 WL 2445292, *10, 12). To be clear,

          we find that the statutory violations to plaintiff’s privacy constituted harm even without

          disclosure, but the disclosure in the case at bar makes it distinguishable from Rosenbach.

¶ 78             As to the second, plaintiff specifically alleged mental anguish in her complaint:


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       No. 1-18-0175


                        “As a result of [defendant]’s conduct, [plaintiff] has suffered emotional upset,

                   mental anguish, and mental injury. For example, [plaintiff] experiences mental

                   anguish and injury when thinking about what would happen to her biometric data if

                   [defendant] goes bankrupt, if [defendant]’s franchisor, L.A. Tan Enterprises, Inc.,

                   goes bankrupt, whether [defendant] will ever delete her biometric data, and whether

                   (and to whom) [defendant] shares her biometric data.”

           Cf. Chand, 335 Ill. App. 3d at 823 (Kuehn, J., concurring in part and dissenting in part)

           (actual damages may include “mental anguish”); Dixon, 2018 WL 2445292, *10 (since the

           court found that harm to the plaintiff’s “right to privacy in her biometric data” constituted a

           “concrete injury,” it did not “address” whether her claim of mental anguish also constituted

           an additional injury). 7 Thus, even if we were persuaded by Rosenbach, we would have to

           find that it is distinguishable from the facts of the instant case, and therefore it does not

           control the outcome here.

¶ 79                    After Rosenbach was decided, an Illinois federal district court distinguished it, for

           virtually the same reasons that we do here. 8 In Dixon, 2018 WL 2445292, *1, the plaintiff

           alleged that her employer required her to clock in and out of work by scanning her

               7
                  In Gubala v. Time Warner Cable, 846 F.3d 909, 913 (7th Cir. 2017), Justice Posner observed
       about the plaintiff in front of him: “Maybe what he’s trying to say is that he fears [the defendant] will give
       away the [plaintiff’s personal] information and it will be used to harm him ***. But he hasn’t said any of
       that.” (Emphasis omitted.) As a result, the Seventh Circuit found that the plaintiff failed to allege an
       article III injury needed to sue under the federal Cable Communications Policy Act (47 U.S.C. § 551(e)
       (2012)). Gubala, 846 F.3d at 910, 913. By contrast, in the case at bar, plaintiff has alleged her fears and
       resulting mental anguish.
                8
                  While decisions from lower federal courts are not binding, we may consider whether we find
       persuasive the logic and reasoning expressed therein. Rosenbach, 2017 IL App (2d) 2170317, ¶ 21.
       However, when reading a federal decision, we must keep in mind the differences, such as that federal
       courts are subject to article III in the federal constitution, while state courts are not. “Under Illinois law,
       lack of standing is an affirmative defense, which is the defendant’s burden to plead and prove.” Lebron,
       237 Ill. 2d at 252. By contrast, in federal court, the injury conferring standing may also be needed to
       confer article III subject-matter jurisdiction, and without it, a federal court may have no power to act.
       E.g., Santana v. Take-Two Interactive Software, Inc., 717 Fed. App’x. 12, 17-18 (2d Cir. 2017).
                                                             26 

       No. 1-18-0175


          fingerprints into a biometric timekeeping device. As in the case at bar, the defendant

          disclosed her biometric identifiers to an out-of-state third party vendor without her consent or

          knowledge. Dixon, 2018 WL 2445292, *12. Before considering whether plaintiff had

          standing under the Act, the federal district court first considered whether she had alleged “an

          injury in fact sufficient for [federal] Article III standing.” Dixon, 2018 WL 2445292, *8.

          After examining the Act’s stated legislative findings and substantive provisions, the federal

          court concluded that the Illinois legislature intended “to create a legal right to privacy in

          personal biometric data.” Dixon, 2018 WL 2445292, *9.

¶ 80             Turning to the case before it, the federal court observed that the plaintiff had “alleged

          that [defendant] disclosed her fingerprint data to [the third-party vendor] without her

          knowledge” and, thus, “violated her right to privacy in her biometric information—the very

          right that the drafters of [the Act] sought to protect.” Dixon, 2018 WL 2445292, *9. The

          federal court found that “this alleged violation of the right to privacy in and control over

          one’s biometric data, despite being an intangible injury, is sufficiently concrete to constitute

          an injury in fact that supports [federal] Article III standing.” Dixon, 2018 WL 2445292, *10.

          The federal court then found that Rosenbach was distinguishable for the same reason,

          namely, that the plaintiff in the case before it, unlike the Rosenbach plaintiff, had alleged an

          actual injury, specifically “an injury to a privacy right.” Dixon, 2018 WL 2445292, *12. The

          federal court explained that, since “obtaining or disclosing a person’s biometric data without

          her consent or knowledge constitutes an actual and concrete injury because it infringes on the

          right to privacy in that data, this case is distinguishable from Rosenbach.” Dixon, 2018 WL

          2445292, *12. In this regard as well, plaintiff’s claim here is also distinguishable.




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       No. 1-18-0175


¶ 81               The federal court also found that other cases cited by the defendant were

           distinguishable for this reason as well. The federal court stated that the plaintiff had “alleged

           what the plaintiffs in McCollough [v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL 4077108

           (N.D. Ill. Aug. 1, 2016)], Vigil [v. Take-Two Interactive Software, Inc., 235 F. Supp. 3d 499

           (S.D.N.Y. 2017) 9] and Gubala[, 846 F.3d at 913] did not. Specifically, she has alleged that

           [the defendant] disclosed her fingerprint scan to [a third-party out-of-state vendor] without

           informing her or obtaining her consent to do so.” Dixon, 2018 WL 2445292, *10. In the case

           at bar, defendant also cites McCollough and Vigil, and we do not find them persuasive for the

           same reason as the Dixon court.

¶ 82                                              CONCLUSION

¶ 83               For the foregoing reasons, we reverse the trial court’s section 2-615 dismissal of

           count I of plaintiff’s complaint and remand for further proceedings consistent with this

           opinion.

¶ 84               First, we find that the trial court was initially correct and that, pursuant to both the

           plain language of the statute itself and its legislative history and purpose, the Act does not

           require a harm in addition to a violation of the Act in order to file suit. The Act states, very

           simply, that any person “aggrieved by a violation of this Act” may sue. 740 ILCS 14/20

           (West 2016). It does not state that a person aggrieved by a violation of this Act—plus some

           additional harm—may sue.




               9
                Vigil was affirmed in part, vacated in part, and remanded by summary order in Santana, 717 Fed.
       App’x. at 18. The Second Circuit vacated the part where the district court held that the plaintiffs lacked
       standing under the Act. Santana, 717 Fed. App’x. at 18. However, the Second Circuit vacated that part
       only because, without an article III injury, the district court lacked the subject-matter jurisdiction needed
       to consider any substantive issues. Santana, 717 Fed. App’x. at 17.
                                                            28 

       No. 1-18-0175


¶ 85              Second, we find that, even if Rosenbach was correctly decided and an additional

          “injury or adverse effect” is required, Rosenbach is distinguishable from this case, in the

          following two ways. Rosenbach, 2017 IL App (2d) 170317, ¶ 28 (requiring an “injury or

          adverse effect,” in addition to violation of the Act). First, as the federal district court

          similarly found, disclosure to an out-of-state third-party vendor constitutes an injury or

          adverse effect, and plaintiff in the instant case alleged such a disclosure, while the Rosenbach

          plaintiff did not. Dixon, 2018 WL 2445292, *10, 12. Second, the mental anguish that plaintiff

          alleges in her complaint also constitutes an injury or adverse effect. E.g., Chand, 335 Ill.

          App. 3d at 823 (Kuehn, J., concurring in part and dissenting in part) (actual damages may

          include “mental anguish”). For these reasons, we must reverse and remand.

¶ 86              “We note, in closing, that the legislature has broad latitude and discretion in drawing

          statutory classifications to benefit the general welfare. [Citation.] The responsibility for the

          wisdom of legislation rests with the legislature, and courts may not rewrite statutes to make

          them consistent with the court’s idea of orderliness or public policy. [Citation.] Whether a

          windfall results in this circumstance—and it is far from clear that it does ***—is not for us

          to decide. Our function is to ascertain the intent of the legislature as expressed in the

          language and framework of its statutory enactments. If this interpretation is not what the

          legislature intended, we urge legislators to revisit this issue and make their intent manifest.”

          (Emphasis in original.) Citibank, N.A. v. Illinois Department of Revenue, 2017 IL 121634,

          ¶ 70.

¶ 87              Reversed and remanded.




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