123186 - courts.illinois.gov(312) 233-1550 (312) 233-1560 f [email protected] attorneys for...

1

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

SUBMITTED - 1380208 - James Zouras - 7/5/2018 12:59 PM

123186

E-FILED7/5/2018 12:59 PMCarolyn Taft GrosbollSUPREME COURT CLERK

6

2

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


123186

3

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.


123186

4

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

[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


123186

5

(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

[email protected]

ATTORNEYS FOR PROPOSED AMICI ROBIN RAPAI


123186

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

[email protected]

ATTORNEYS FOR PROPOSED AMICUS WYESHA WATTS

Douglas M. Werman Maureen A. Salas WERMAN SALAS, PC


123186

77 W Washington St, Suite 1402 Chicago, IL 60602 (312) 419-1008 (312) 419-1025 f



Alejandro Caffarelli CAFFARELLI & ASSOCIATES, LTD 224 S. Michigan Avenue, Suite 300 Chicago, IL 60604 (312) 763-6880

[email protected]


Kasif Khowaja THE KHOWAJA LAW FIRM, LLC 70 E Lake St, 12th Floor Chicago, IL 60601 (312) 356-3200

[email protected]



123186

i

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


123186

ii

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


123186

1

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


123186

2

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


123186

3

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


123186

4

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


123186

5

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


123186

6

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,


123186

7

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


123186

8

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


123186

9

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.


By: James B. Zouras James B. Zouras Ryan F. Stephan Andrew C. Ficzko Haley R. Jenkins STEPHAN ZOURAS, LLP


123186

10

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



By: Alejandro Caffarelli Alejandro Caffarelli CAFFARELLI & ASSOCIATES, LTD 224 S. Michigan Avenue, Suite 300 Chicago, IL 60604 (312) 763-6880

[email protected]


By: Kasif Khowaja Kasif Khowaja THE KHOWAJA LAW FIRM, LLC 70 E Lake St, 12th Floor Chicago, IL 60601 (312) 356-3200

[email protected]



123186

11

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.


123186

12

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).


123186

13

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

[email protected]


123186


123186


1

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,


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.


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


123186


2

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

[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

[email protected]

ATTORNEYS FOR PROPOSED AMICI

ROBIN RAPAI


123186

mailto:[email protected]



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,


)

)

)

)

)

)

)

)

)

)

)

)

)

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


123186

123186 - courts.illinois.gov(312) 233-1550 (312) 233-1560 f [email protected] attorneys for...

Documents