The Influence of Spokeo on State Level Cases: Barnes v. Arytza and Rosenbach v. Six Flags

Removal to federal court doesn’t kill standing, but court wants to see actual harm

Part 1 : Removal Strategy Fails, Attorney Fees Awarded

Barnes v. Arytza
Remanded to state court – Arytza (dba Otis Spunkmeyer and La Brea Bakery brands) allegedly collected plaintiff’s fingerprints (for employee timekeeping) without informing him of the purposes of use, or Arytza’s retention, security, or deletion policies. Plaintiff claimed he was never provided, nor signed, a written release allowing Aryzta to collect, store, or use his fingerprints.

Arytza had the case removed to federal court, then immediately filed a motion to dismiss for lack of subject matter jurisdiction (no standing under Spokeo). Plaintiff countered with a motion to remand to state court. Arytza then amended its motion to state the standing issue need not be resolved at this time. The court found Arytza’s ‘wait and see’ approach still negated the basis for its removal petition, and since it sought removal in the first place, the burden was on it to prove the federal court had jurisdiction. Since Arytza admitted that Article III standing based on Spokeo in the context of Plaintiff’s claims in the case was unsettled, the court had no choice but to remand to state court.

Since Arytzta flipped its arguments – first arguing the court did not have jurisdiction, then arguing it could decide later – the court ruled the case was unnecessarily prolonged and awarded plaintiff costs and attorney’s fees.
[N.D. Ill; 1:17-cv-07358]
jbho: I initially blogged about this a year ago in Mocek v. AllSaints (N.D. Ill; 1:16-cv-08484) with the caveat that Spokeo doesn’t necessarily make cases go away, it just keeps them out of federal court. That was a FACTA case, but the findings were essentially the same – the strategy of asserting, then immediately disavowing, federal jurisdiction unnecessarily prolonged the proceedings. The court cited that case as part of the decision here.

The court also rejected Arytza’s bid to remove solely based on jurisdictional prerequisites under CAFA. “Notwithstanding its strategic withdrawal of its motion to dismiss for lack of subject matter jurisdiction, Defendant argues in opposition to Plaintiff’s motion to say that a court is without jurisdiction to decide a case on its merits yet has jurisdiction merely to remove the case is to state a contradiction.” (citation omitted)

However, in light of Rosenbach v. Six Flags (below) Arytza may still prevail on the actual harm argument. Stay tuned…


Part 2 : Person Aggrieved Must Allege Actual Harm

Rosenbach v. Six Flags
Certified questions answered and remanded – Six Flags allegedly collected plaintiff’s son’s thumbprint as part of a season-pass purchase; thumbprints to be used for park entry. Plaintiff claimed the biometrics were collected without informing her of the purposes of use, retention, security, or deletion policies. Plaintiff further alleged she never provided written consent for the collection, use, and storage of her son’s thumbprint.

The county court initially denied a motion to dismiss, but on a motion for reconsideration certified two questions to the appellate court: whether an individual is ‘aggrieved’ when the only injury alleged is a violation of disclosures and consent requirements of BIPA, and thus entitled to (1) statutory damages, or (2) injunctive relief.

The court found to be ‘aggrieved’ under BIPA, one must have been adversely affected or harmed by an infringement of a legal right. Plaintiff failed to allege she or her son suffered any actual injury, or any harm or injury to a privacy right. She only stated she would not have purchased a season-pass had she known of Six Flags conduct. The court found that although injuries or adverse effects need not be pecuniary, plaintiff’s allegations of technical violations alone were insufficient to render her ‘aggrieved’ under BIPA. Thus, she was entitled to neither statutory damages nor injunctive relief.
[Ill. App. Ct. 2nd Dist; 2-17-0317]
jbho: interesting to see how the state court embraced the Spokeo reasoning, wihtout actaully mentioning Spokeo. Per the court: “permitting a private cause of action for a mere technical violation … requires that the word ‘aggrieved’ be read out of the statute.” So no harm, no foul?

Or, will the county court allow plaintiff to amend her complaint on remand? I’ll keep my eyes peeled. Let me know if you hear something.

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