B.Illinois Supreme Court Holds Each Scan Is A Separate BIPA ViolationThe Illinois Supreme Court decided in Cothron v. White Castle, 2023 IL 128004 (Ill. Feb.17, 2023), that a separate claim for damages accrues under the Biometric InformationPrivacy Act (“BIPA”) each time a private entity scans or transmits an individual’sbiometric identifier or information, in violation of § 15(b) or 15(d).This ruling could exponentially increase monetary damages in class actions broughtunder the BIPA, especially in the employment context, where employees scan in andout of work multiple times per day for several hundred days per year.The plaintiff alleged that after she started working at White Castle in 2004, the companyrequired her to use a fingerprint-based system to access the workplace computer sheused in her position as a manager. The plaintiff sued White Castle several years later in2018, alleging that the company violated §§ 15(b) and 15(d) of the BIPA in connectionwith the fingerprint-based system by (i) collecting her biometric data without providingher with the requisite notice and obtaining her written consent, and (ii) disclosing herbiometric data without consent.After removing the complaint to the district court, White Castle moved for judgment onthe pleadings on the basis that the plaintiff’s claims were untimely. Specifically, WhiteCastle argued that the plaintiff’s BIPA claims accrued in 2008 (when her first fingerprintscan occurred after the BIPA took effect), yet she did not file her complaint until2018. The district court rejected White Castle’s one-time-only theory of claim accrual,holding that the lawsuit was timely because each separate unauthorized fingerprint scanconstituted an independent violation of the statute, meaning the plaintiff’s BIPA claimswere timely because her last fingerprint scan occurred within five years of the filing ofher complaint. Because the issue presented a close call, however, the District Courtpermitted White Castle to file an interlocutory appeal with the Seventh Circuit regardingwhether §§ 15(b) and 15(d) claims accrue each time a private entity scans a person’sbiometric identifier and each time a private entity transmits a scan to a third party,respectively, or only upon the first scan and first transmission.The Seventh Circuit accepted the interlocutory appeal. Id. ¶ 9. After determining that theplaintiff had standing to bring her action in federal court under Article III of the U.S.Constitution, the Seventh Circuit addressed the parties’ respective arguments on theaccrual of a claim under the Act. Id. Ultimately, the Seventh Circuit found the parties’competing interpretations of claim accrual reasonable under Illinois law, and it agreedwith the plaintiff that “the novelty and uncertainty of the claim-accrual question”warranted certification of the question to the Illinois Supreme Court. Id. at 1165-66. TheSeventh Circuit “observed that the answer to the claim-accrual question woulddetermine the outcome of the parties’ dispute, this court could potentially side witheither party on the question, the question was likely to recur, and it involved a uniqueIllinois statute regularly applied by federal courts.” Id.In a 4-3 split ruling, the Illinois Supreme Court held that that a separate claim accrues21© Duane Morris LLP 2023Duane Morris Privacy Class Action Review – 2023
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