In a 4-3 opinion, the Illinois Supreme Court ruled Friday that Biometric Information Privacy Act (BIPA) claims accrue each time data is unlawfully collected and disclosed rather than simply the first time. This will be a blow to most defendants named in BIPA disputes and could increase potential damages in these cases.
The ruling fulfills a request from the Seventh Circuit that the justices determine how claims accrue under BIPA, an issue impacting hundreds of pending lawsuits that accuse companies of subjecting their employees and customers to unlawful biometric data collection practices. The state high court agreed to tackle the question in Latrina Cothron v. White Castle System Inc., a BIPA lawsuit against White Castle Systems Inc., after the federal appellate court said it was genuinely uncertain how to answer it.
Defendants previously argued that only the first scan or disclosure should trigger a new claim under BIPA, which requires informed consent before collection or disclosure, because finding otherwise could expose even the smallest companies to ruinous damages from plaintiffs who largely can't even point to actual damages resulting from an alleged violation.
The defendant claimed plaintiff was asking the justices to find that every repeated collection and disclosure of biometric data between the same two parties constitutes a new BIPA violation while ignoring statutory provisions stating that parties "may" recover damages for each violation.
This is a stark reminder to companies that they need to have consent about their biometric collection and disclosure practices. Without it, they run the potential risk of violating BIPA every single time they fail to get that consent before engaging in those practices.
This dispute reached appellate review after a Chicago federal judge found that only some of the claims in the plaintiff’s proposed class suit were untimely. The decision prevented defendant from fully escaping plaintiff’s accusation that the chain began illegally collecting and using her finger scan in 2007, and that it had repeatedly violated BIPA since the law went into effect the following year.
The Seventh Circuit said it found the issue most appropriate for the Illinois high court because it presented "an important and recurring question" affecting the unique state law, one that it said "requires authoritative guidance that only the state's highest court can provide."
If you have questions about this development, please contact Garrett L. Boehm, Jr., Kevin G. Owens or Pat Gloor.