Six Flags agrees to $36 million settlement over alleged BIPA violations

[June 15, 2021]  By SARAH MANSUR
Capitol News Illinois
smansur@capitolnewsillinois

SPRINGFIELD — Six Flags Great America has agreed to a $36 million settlement to end a class-action lawsuit over the amusement park’s use of finger-scan entry gates.

Six Flags doesn’t admit to any fault or liability as part of the agreement, which is subject to final approval at a court hearing in October.

The lawsuit, filed in Lake County, claims that the finger scan violates the Illinois Biometric Privacy Act, which regulates how companies can use an individual’s biometric data — such as a fingerprint or a scan of the hand or face geometry.

The law, passed in 2008, was first the state or federal law to establish a person's individual right to sue over biometric privacy rights. It also requires that entities must have written consent from a person before collecting and storing that person’s biometric information.

The law also provides damages of $1,000 for each negligent violation and $5,000 for each intentional or reckless violation.

Stacy Rosenbach, the lead plaintiff in the case against Six Flags, sued the Gurnee amusement park in 2016 on behalf of her son, Alexander, who provided his fingerprint to gain entry, without first giving his consent.

The case eventually reached the Illinois Supreme Court.

The question before the high court was whether a violation under BIPA must allege actual injury or harm, rather than basing the violation entirely on the injury or harm that occurs when biometric data is collected without a person’s consent.

Six Flags argued that there was not an actual injury because the biometric data was not breached or stolen.

In 2019, the Illinois Supreme Court ruled that “an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights” in order to qualify as an “aggrieved” person under BIPA, and be entitled to damages and other relief.

After the Supreme Court ruling, both parties entered into mediation. The Lake County Court preliminarily approved the proposed settlement agreement last month and the settlement was recently made public.

Under the agreement, people who first had their finger scanned when entering Six Flags Great America between Oct. 1, 2013, and April 30, 2016, can receive up to $200, over five installments.

People who first had their finger scanned when entering the park between May 1, 2016, and Dec. 31, 2018, can receive up to $60, in five installments.

Mark Bulgarelli, an attorney with Progressive Law Group LLC in Evanston, is one of the lawyers representing Six Flags.

Phillip A. Bock, of Chicago-based Bock, Hatch & Oppenheim LLC, represents the class of plaintiffs.

Neither responded to a request for comment.

Earlier this year, Facebook finalized a $650 million settlement agreement with Facebook users in Illinois. The settlement arose from a class-action lawsuit that claimed the company violated BIPA when it collected and stored the biometric data of Facebook users in Illinois without proper notice and consent.

The settlement applies to users in Illinois who had created and stored a face template through Facebook after June 7, 2011.

High-profile BIPA litigation prompted some lawmakers in Illinois to propose changes to the law this spring that would have provided entities with a 30-day window to “cure” a potential BIPA violation, otherwise they would be subject to litigation.

The legislation, House Bill 559, never received a full vote in the House or Senate.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.