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Is a statutory violation alone sufficient to satisfy the “injury in fact” requirement of standing outside the context of the Illinois Biometric Information Privacy Act (BIPA)? The Illinois Supreme Court will take up this question this term in Fausett v. Walgreen Co.
On March 7, 2019, Calley Fausett, the named plaintiff, performed a “fund-load transaction” at a Walgreens in Phoenix, Arizona. Plaintiff alleged that she received two receipts which had the first six digits and the last four digits of her debit account number printed. On June 4, 2019, plaintiff filed suit against Walgreen Co. in Lake County (IL) Circuit Court, alleging that the receipts violated the Fair and Accurate Credit Transactions Act (FACTA).
On August 9, 2019, plaintiff filed the first amended class action complaint. Walgreen moved to dismiss, arguing that FACTA did not apply and that the plaintiff lacked standing for failure to show an injury in fact. On November 22, 2019, the circuit court denied the motion. On March 1, 2023, the circuit court certified the class, which Walgreen sought permissive appeal under Illinois Supreme Court Rule 308(a)(8).
In its appellate brief, Walgreen raised various issues, including the question of standing. On May 18, 2023, the Illinois Appellate Court denied leave to appeal. On September 27, 2023, the Illinois Supreme Court granted Walgreen’s petition for leave to appeal under Illinois Supreme Court Rule 315.
Walgreen argues that plaintiff lacks standing because she has suffered no harm and that in Illinois, standing requires that the plaintiff has suffered “a ‘distinct and palpable’ ‘injury in fact.’” Walgreen argues that class certification should also have been denied on this ground as the class representative must have standing to maintain a class action suit. Walgreen states that “no Illinois precedent has ever held that an affirmative defense of standing is defeated by a plaintiff’s identification of a mere statutory violation.”
Plaintiff argues that she has standing because of the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. Plaintiff states that Rosenbach stands for the proposition that the allegation of a statutory violation, such as FACTA, is enough to establish standing to sue, without the plaintiff having to show a resulting injury. Plaintiff argues that this holding was reaffirmed by the Illinois Supreme Court in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511 and Cothron v. White Castle System, Inc., 2023 IL 128004.
Walgreen argues that Rosenbach “was not a standing case at all and arises in the unique context of biometrics.” Moreover, the holding of Rosenbach has only been reaffirmed in the context of BIPA and that plaintiff has not identified any cases with differing facts where a court has held “that a statutory violation alone is sufficient to defeat an asserted standing defense.” Walgreen points to cases like Bryant v. Compass Group, USA, Inc., 58 F.3d 617 (7th Cir. 2020) where a violation of BIPA was found to satisfy Article III standing in federal court and cases where no-injury FACTA plaintiffs were unable to establish standing on a violation alone.
In Fausett v. Walgreen Co., the Illinois Supreme Court could extend its holding in Rosenbach to other contexts, expanding the ability of plaintiffs to satisfy the “injury in fact” requirement and opening the door to cases oriented around other statutory violations. The court also could firmly establish that its holding in Rosenbach should be constrained to its facts and that other statutory violations, without plaintiffs showing resulting injury, cannot establish standing.
Either outcome could significantly change the standing landscape in Illinois and this is especially so as the Seventh Circuit has continued to strictly apply standing doctrine under Article III and plaintiffs have begun to file their lawsuits under FACTA, the Fair Debt Collection Practices Act, and other similar statutes in Illinois state court.