Illinois Supreme Court Rules BIPA Claims Accrue With Each Scan

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On Friday, February 17^th, The Illinois Supreme Court ruled that Biometric Information Privacy Act (“BIPA”) claims accrue each time data is collected and disclosed unlawfully, rather than just the first time the data is collected, as previously thought. This ruling could lead significantly to extreme damages awarded in these cases.

In a 4-3 opinion, the justices said that the statutes language supports plaintiff Latrina Cothrons’ interpretation of BIPA. Cothron noted that defendant obtains an employee’s fingerprint and stores it in its databases, and the workers must present and use their fingerprint in order to access paystubs and company computers.

The court stated that “…with the subsequent scans, the fingerprint is compared to the stored copy of the fingerprint. Defendant fails to explain how such a system could work without collecting or capturing the fingerprint every time the employee needs to access his or her computer or paystub…,” showing that there is an existing issue with storage of employee’s sensitive information.

The Seventh Circuit has requested that the justices make a determination on how claims accrue under the BIPA, an issue that will effectively impact hundreds of pending lawsuits that accuse companies of subjecting their users and employees to apparently unlawful biometric data collection. Following the federal appellate court stating that it was genuinely uncertain how to answer this question, the state’s high court agreed to give it a try.

In contrast, White Castle argued that only the first scan or disclosure should trigger a new claim under BIPA, requiring informed consent before collection or disclosure, stating that finding otherwise would expose companies to ruinous damages from plaintiffs who cannot adequately show actual damages. They further argued that Cothron essentially asked the justices to find a new BIPA violation for every repeated collection and disclosure of biometric data between the same to parties while ignoring statutory provisions stating that parties “may” recover for each violation.

Continuing their argument, Plaintiff argued what White Castle alleges may occur is the worst-case scenario, and is far from likely, only applicable to BIPA defendants seeking more than $5 million in damages in order to cross the Class Action Fairness Act threshold when they try to remove cases from state to federal court. Through her counsel, she further attempted to dispel the thought that permission would be necessary every single time they disclosed their biometric information. Companies would only require permissions once, if they do not modify their processes of collection and disclosure.

White Castle was unable to fully escape Cothron’s accusations, despite some of her claims being untimely, thus allowing the case to reach appellate review. The case was thought by the Seventh Circuit to be most appropriate for the Illinois High Court due to the issue presenting “an important and recurring question” which it believes “requires authoritative guidance that only the state’s highest court can provide.”