The past few decades have witnessed an explosion of class action litigation in which putative class representatives—far from claiming that they actually lost money or suffered some type of physical or psychological harm—allege that their only injury consists of a risk that their private information might be disclosed to someone at some point in the future. Gigantic fortunes and the futures of global businesses sometimes depend on whether and under what circumstances such “no-injury plaintiffs” have standing to pursue their claims and represent a class of thousands or even millions of people whose private information could potentially be considered at some risk of some sort of wrongful disclosure.
Fortunately, a week before this past Thanksgiving, the Illinois Supreme Court issued its enormously anticipated opinion in Fausett v. Walgreen Co., 2025 IL 131444, which goes a long way toward clarifying which circumstances give someone the right to file a lawsuit in an Illinois state court. The Fausett opinion has far-reaching consequences for class action and privacy rights litigation in Illinois.
Calley Fausett could fairly be described as a “no-injury” plaintiff. At a Walgreens store in Arizona, she added money to a prepaid debit card. She later claimed that her receipt included the first six digits of her prepaid debit card number. Based solely on that fact, she filed a class action lawsuit against Walgreens in Illinois under the Fair and Accurate Credit Transactions Act of 2003 (FACTA). Fausett did not claim to have been the victim of identity theft. She identified no one who ever saw those six digits, except possibly the cashier.
A full discussion of the procedural history of the Fausett litigation would require a dozen newspaper columns. In the final analysis, the litigation boiled down to whether, under Illinois law, Walgreens could establish that Ms. Fausett lacked standing to pursue a claim. The answer is that Walgreens could and did establish that Ms. Fausett lacked standing—so the Supreme Court not only reversed the order granting class certification but ordered the dismissal of Ms. Fausett’s lawsuit.
The Supreme Court began its analysis by explaining that, although Ms. Fausett asserted a cause of action arising under a federal statute, her standing to pursue that cause of action in an Illinois state court was governed by Illinois law. Illinois law on standing, moreover, does not track federal law on standing. Illinois courts have, in fact, “expressly rejected federal principles of standing.” See 2025 IL 131444, ¶ 36. That might have been one of the reasons why Ms. Fausett filed suit in Illinois even though her fateful visit to a Walgreens store occurred in Arizona.
Returning to first principles, the Supreme Court explained that, under Illinois law, there are two kinds of standing: statutory standing and common law standing. See 2025 IL 131444, ¶ 37. Statutory standing can be extraordinarily broad, as demonstrated by the Supreme Court’s interpretation of standing requirements under the Illinois Biometric Information Privacy Act in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. But that did not aid Ms. Faucett. Unlike BIPA, FACTA is “silent as to who may bring the cause of action for damages.” See 2025 IL 131444, ¶ 44. It contained no language broadly allowing any consumer or aggrieved person to assert a cause of action.
“As such,” the Supreme Court held, “plaintiff’s FACTA claim does not implicate statutory standing principles, and thus common-law standing applies to plaintiff’s suit.” Id. That itself is a crucial point: Common-law standing principles apply by default as long as no statute says who has standing to sue, and that remains true even if the plaintiff’s claims are exclusively based on a statute.
Common-law standing principles, in turn, require three things: (1) the injury must be distinct and palpable; (2) the injury must be fairly traceable to the defendant’s actions; and (3) the injury must be substantially likely to be prevented or redressed by the relief requested. Petta v. Christie Business Holdings Co., P.C., 2025 IL 130337, ¶ 18 (quoting Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492-93 (1988)). These three things are necessary to show an injury in fact to a legally cognizable interest—the heart of common law standing. Id.
The first of these three requirements is sometimes paraphrased as requiring a “concrete” injury, as opposed to a speculative injury. Ms. Fausett’s claim ran aground on that first requirement. She was a no-injury plaintiff. She was never the victim of identity theft. She showed, “at best . . . an increased risk of identity theft” and that is insufficient to establish a concrete injury. See 2025 IL 131444, ¶ 50. She therefore lacked standing under common law principles. The Supreme Court noted that, because it determined that common law standing principles governed Ms. Fausett’s standing, it did not need to “determine whether a concrete injury is also required with statutory standing.” Id., ¶ 46. The Court’s choice to flag that as an open issue suggests that broad interpretations of its opinion in Rosenbach on standing in BIPA cases may stand on shaky ground.
By: John Fitzgerald
John is an equity partner at Tabet DiVito & Rothstein. His practice includes complex litigation at both the trial and appellate court levels. He previously served as President of the Appellate Lawyers Association of Illinois from 2020-2021.
If interested in contributing to The Brief, please email: alabriefsubmissions@gmail.com. We'd be delighted to have your voice as part of our blog and to share your insights with our readership.
.png)