Illinois Supreme Court Decision In White Castle Leaves Plaintiffs' Bar With All-You-Can-Eat Biometric Buffet

• Jurisdiction: Illinois,United States,Federal
• Law Firm: Winston & Strawn LLP
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Author: Mr Sean G. Wieber, Alessandra Swanson, Michelle Tuma, James Randall, Christian W. Gray and Sophie R. LaCava
• Published date: 01 March 2023

Last week, in Cothron v. White Castle System, Inc., the Illinois Supreme Court confirmed that each violation of BIPA constitutes a distinct and separately actionable violation of the statute. This means that many plaintiffs will have a significantly longer time in which to initiate litigation (for example, an employee who clocks in daily using a fingerprint scan resets the statute of limitations each day), and statutory damages could be astronomically higher (that same employee has suffered a violation twice per day, with each scan in and out, as opposed to a single violation at first collection). The plaintiff in Cothron, a former employee of defendant White Castle, brought claims under Sections 15(b) and 15(d) of BIPA for alleged violations arising from White Castle's collection of her fingerprints. The plaintiff began working at White Castle in Illinois in 2004, and during her tenure, White Castle implemented an optional, consent-based finger-scan system for employees to sign documents and access their paystubs and computers. While the plaintiff initially consented to the collection of her biometric data in 2007, she sued in 2018'alleging that White Castle never obtained consent to collect or disclose her fingerprints under BIPA because BIPA did not exist in 2007.

Shortly after suit was filed in the circuit court of Cook County, defendant White Castle removed this action to federal court under the Class Action Fairness Act. After the district court disagreed with White Castle's theory as to when plaintiff's BIPA claims accrued, White Castle sought an interlocutory appeal to the Seventh Circuit. In response to the accrual issues presented, the Seventh Circuit certified a question to the Illinois Supreme Court' asking, "do section 15(b) and 15(d) claims accrue each time a private entity scans a person's biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?"

The Illinois Supreme Court scrutinized the plain language of Section 15(b) and disagreed with White Castle that "collection" or "capture" of biometric identifiers occurs only once'at the time an entity first obtains an individual's fingerprint. The court analyzed Section 15(b)'s language distinguishing collection and storage of biometric identifiers, noting Section 15(b)(2)'s requirement that an entity must notify an individual regarding how long their biometric identifiers would be collected...