"On November 21, 2017, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a case under Illinois’s Biometric Information Privacy Act (“BIPA”), finding that none of the alleged violations created a material risk of harm, so there was no federal subject-matter jurisdiction under the Supreme Court’s 2016 Spokeo decision. Vigil v. Take-Two Interactive, 2017 WL 5592589 (2nd Cir. Nov. 21, 2017). Although the decision was an unpublished and non-precedential summary order, the affirmed dismissal will help defendants utilize a Spokeo argument to attack BIPA cases filed in federal court. The decision’s impact in state court (where Spokeo is not binding) is less clear, but should help defendants there as well . . . . "
Additional article here that states
"We’ve seen a flurry of lawsuits based on the Illinois statute relied on by plaintiffs here. The Shutterfly lawsuit linked below was brought by a non-user and survived a motion to dismiss. (It looks like it’s in the middle of discovery.) This case was brought by a user and is a much tougher one to make. It’s tough to argue subterfuge as to the process of the face-scan itself."