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Circuit, Illinois Court of Appeals considers when BIPA claims pile up | King and Spalding

In a pair of decisions released in late December, the Illinois Court of Appeals and the Seventh Circuit Court of Appeals considered whether claims filed under Illinois’ biometric information privacy law (” BIPA”) accrue only when a defendant first breaks the law or each time the law is broken. The Illinois Court of Appeals found that each violation of BIPA re-triggers the execution of the statute of limitations, while the Seventh Circuit certified the question of when BIPA claims revert to the Supreme Court of Illinois. ‘Illinois.

  • The Illinois Court of Appeals case—Watson vs. Legacy Healthcare Financial Services, LLC— was brought in by a certified practical nurse who worked at two Chicago-area facilities owned by the same company. The plaintiff claimed that between 2012 and 2019, while employed by the defendants, he was required to provide a full fingerprint to access his time card and punch in and out of work. Plaintiff filed suit in March 2019, claiming – on behalf of itself and a putative class of like-minded individuals – that Defendants’ practices regarding these handprints violated BIPA in four distinct ways.
  • The defendants sought dismissal, arguing that the plaintiff’s claims were statute-barred because they arose on the first day he provided them with a handprint. The trial court accepted and dismissed plaintiff’s claims against two of the defendants on the grounds of limitation.
  • Plaintiff appealed to the Illinois Court of Appeals, which overturned. The court first looked at BIPA’s plain text. She focused on the BIPA order’s lack of a “time limitation” prohibiting private entities from “collecting” or “capturing” biometric information without the subject’s informed consent. The court held that the plain language of the law “thus applied[ies] to the first as to the last, collection or capture.
  • Both in its discussion of the BIPA text and in a separate discussion of the law’s legislative history, the court emphasized BIPA’s objectives of allaying the fears of a “skeptical” public about the collection of biometric data and to give individuals the opportunity to seek a “remedy” for the unlawful collection of such data. The court suggested that these goals supported its conclusion that claims under the statute accrue with each violation of the BIPA, not the first such violation.
  • The Seventh Circuit case— Cothron vs. White Castle System, Inc.— was decided only a few days after Watson. In this case, the complainant worked for a hamburger restaurant in White Castle for more than a decade, beginning in 2004. Although the complainant had to scan her fingerprint to access White Castle’s computers for most or All of that time, White Castle did not seek Plaintiff’s written informed consent to collect her biometrics until 2018. Plaintiff filed claims with BIPA on her own behalf and on behalf of a group putative based on White Castle’s alleged (1) failure to obtain such written consent and (2) sharing of biometric data with a vendor White Castle used to authenticate such data. White Castle sought judgment on the pleadings, arguing the same primary argument as the Watson defendants: that the plaintiff’s claims were time-barred because they only arose when she first provided biometric data to White Castle more than a decade before filing suit. The Northern District of Illinois found that a new BIPA claim accrued each time White Castle collected and shared the plaintiff’s information, but it certified its order on this matter for an interlocutory appeal.
  • The Seventh Circuit accepted the interlocutory appeal. Regarding when a BIPA claim accrues, the court considered the party’s arguments, noting that the plain text of the statute and the precedent interpreting it could be interpreted fairly to allow one or more points of accumulation of claims. The court also discussed in detail the parties’ arguments related to the policy. White Castle argued that finding that a new claim accrues with each BIPA violation could result in “staggered awards,” as the conduct underlying the BIPA claims often occurs frequently (for example, White Castle employees scan their fingerprints several times a day to gain access to company computers) and the law provides between $1,000 and $5,000 in damages for each violation. The plaintiff argued that if BIPA claims occurred only once, a company would suffer no legal consequences for repeated violations and would have little incentive to improve its biometric data practices.
  • Notwithstanding the Watson ruling by the Illinois Intermediate Court of Appeals days earlier, the Seventh Circuit found that the strong arguments on all sides of the accrual issue – and its importance in resolving the ever-growing case BIPA cases – justified certifying this matter to the Illinois Supreme Court.
  • Now that the Illinois Supreme Court is about to consider cothronit seems like Watson will not be the final word of the Illinois appellate courts on the highly contentious issue of when BIPA claims accrue. Both Watson and cothron demonstrate that the issue of accrual accounting is a narrow issue on which the Illinois Supreme Court could go either way. And the political arguments that the parties have articulated in cothron demonstrate that the resolution of this issue by the Supreme Court could have a major impact on BIPA litigation in the future.

You can read the full decision of the Illinois Court of Appeals in Watson vs. Legacy Healthcare Financial Services, LLC here and the full decision of the Seventh Circuit in Cothron vs. White Castle System, Inc. here.