BREAKING: Seventh Circuit Certifies BIPA Accrual Question To Illinois Supreme Court In White Castle – Privacy | #itsecurity | #infosec

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BREAKING: Seventh Circuit Certifies BIPA Accrual Question To Illinois Supreme Court In White Castle

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Yesterday the Seventh Circuit issued a much awaited ruling
the Cothron v. White Castle litigation, punting
to the Illinois Supreme Court on the pivotal question of when a
claim under the Illinois Biometric Privacy Act (“BIPA”)
accrues.  No. 20-3202 (7th Cir.).  Read on to learn more
and what it may mean for other biometric and data privacy

First, a brief recap of the facts of the dispute.  After
Plaintiff started working at a White Castle in Illinois in 2004,
White Castle began using an optional, consent-based finger-scan
system for employees to sign documents and access their paystubs
and computers.  Plaintiff consented in 2007 to the collection
of her biometric data and then 11 years later—in
2018—filed suit against White Castle for purported violation
of BIPA.

Plaintiff alleged that White Castle did not obtain consent to
collect or disclose her fingerprints at the first instance the
collection occurred under BIPA because BIPA did not exist in
2007.  Plaintiff asserted that she was “required” to
scan her finger each time she accessed her work computer and weekly
paystubs with White Castle and that her prior consent to the
collection of biometric data did not satisfy BIPA’s
requirements.  According to Plaintiff, White Castle violated
BIPA Sections 15(b) and 15(d) by collecting, then
“systematically and automatically” disclosing her
biometric information without adhering to BIPA’s requirements
(she claimed she did not consent under BIPA to the collection of
her information until 2018). She sought statutory damages for
“each” violation on behalf of herself and a putative

White Castle before the district court had moved to dismiss the
Complaint and for judgment on the pleadings—both of which
motions were denied.  The district court sided with Plaintiff,
holding that “[o]n the facts set forth in the pleadings, White
Castle violated Section 15(b) when it first scanned
[Plaintiff’s] fingerprint and violated Section 15(d) when it
first disclosed her biometric information to a third
party.”  The district court also held that under Section
20 of BIPA, Plaintiff could recover for “each
violation.”  The court rejected White Castle’s
argument that this was an absurd interpretation of the statute not
in keeping with legislative intent, commenting that “[i]f the
Illinois legislature agrees that this reading of BIPA is absurd, it
is of course free to modify the statue” but “it is not
the role of a court—particularly a federal court—to
rewrite a state statute to avoid a construction that may penalize
violations severely.”

White Castle filed an appeal of the district court’s ruling
with the Seventh Circuit.  As presented by White Castle, the
issue before the Seventh Circuit was “[w]hether, when conduct
that allegedly violates BIPA is repeated, that conduct gives rise
to a single claim under Sections 15(b) and 15(d) of BIPA, or
multiple claims.”

In ruling yesterday this issue was appropriate for the Illinois
Supreme Court, the Seventh Circuit held that “[w]hether a
claim accrues only once or repeatedly is an important and recurring
question of Illinois law implicating state accrual principles as
applied to this novel state statute.  It requires
authoritative guidance that only the state’s highest court can
provide.”  Here, the accrual issue is dispositive for
purposes of Plaintiffs’ BIPA claim.  As the Seventh
Circuit recognized, “[t]he timeliness of the suit depends on
whether a claim under the Act accrued each time [Plaintiff] scanned
her fingerprint to access a work computer or just the first

Interestingly, the Seventh Circuit drew a comparison to data
privacy litigations outside the context of BIPA, stating that the
parties’ “disagreement, framed differently, is whether the
Act should be treated like a junk-fax statute for which a claim
accrues for each unsolicited fax, [], or instead like certain
privacy and reputational torts that accrue only at the initial
publication of defamatory material.”

Several BIPA litigations have been stayed pending a ruling from
the Seventh Circuit in White Castle and these
cases will remain on pause going into 2022 pending a ruling from
the Illinois Supreme Court.  While some had hoped for clarity
on this area of BIPA jurisprudence by the end of the year, the
Seventh Circuit’s ruling means that this litigation will remain
a must-watch privacy case going forward.  For more on this,
stay tuned, CPW will be there to keep you in the loop.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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