Cothron v. White Castle System, Inc.

Issue

The Illinois Supreme Court will be ruling on whether damages under the Illinois Biometric Information Privacy Act (BIPA) accrue every time an employee scans his fingerprint at work or just for the first violation when the fingerprint information was first recorded. In this case, the employee had to clock in and out using a fingerprint scan. Clearly, it could be ruinous, particularly for a small business, with damages at up to $5,000 per violation, if it is each scan versus the first time when the employer collected the biometric information.

March 3, 2022

The Restaurant Law Center, Retail Litigation Center, and National Retail Federation filed a Motion For Leave to file as amici curiae in support of the defendant-appellant. Our stated position is that BIPA was not designed as a mechanism to expose businesses taking good faith measures to enhance the security of their employees’ information to extraordinary damages—particularly where no one was harmed. Nor was BIPA designed to be a vehicle for entrepreneurial litigants to leverage windfall statutory damages exposure to extract massive settlements. We urge the Illinois Supreme Court to find that claims under BIPA accrue only upon the first scan or first transmission.

February 17, 2023

Regretfully, the Illinois Supreme Court ruled 4-3 in Cothron v. White Castle that plaintiffs could bring Biometric Information Privacy Act (BIPA) claims for every time a fingerprint was scanned, as opposed of just for the first time when the information was collected as we urged them to do in our amicus brief. The court acknowledged that its reading exposes BIPA defendants to catastrophic liability, with White Castle estimating that it now faces damages exceeding $17 billion, but the majority ruled that it was up to the state legislature to revisit and fix BIPA.

March 10, 2023

The Restaurant Law Center, Retail Litigation Center, National Retail Federation, and Illinois Restaurant Association filed a brief in support of White Castle’s request for a rehearing by the Illinois Supreme Court. Amici submit that the Petition for Rehearing falls squarely within the standard and is warranted because the implications of the Opinion, issued on February 17, 2023, are so severe. The rehearing is necessary to protect the due process interests of potential defendants acting in good faith and to ensure that those same entities can continue to operate in Illinois and continue to contribute to the state’s economy, without the threat of “annihilative liability” in violation of the intent of the Illinois General Assembly.

March 28, 2023

The Illinois Supreme Court granted amici’s request to file a brief in support of Appellant’s Petition for Rehearing.

July 18, 2023

The Illinois Supreme Court denied the request to rehear its controversial 4-3 Biometric Information Privacy Act ruling that claims accrue each time fingerprints were scan as opposed to when the data was collected. Again, three justices strongly objected to the decision not to revisit the February decision.

August 23, 2023

The district court’s decision was upheld by Seventh Circuit panel holding that an employer could be liable every time it scans an employee’s fingerprint, and not just once when the data was originally collected, in violation of the Illinois Biometric Information Privacy Act. The panel adopted a ruling by the Illinois Supreme Court to which it certified that exact question.