The Illinois Supreme Court’s ruling in Cothron v. White Castle System has clarified the point at which a claim under Illinois’ Biometric Information Privacy Act (“BIPA”) would accrue. The Plaintiffs in Cothron put the issue of claim accrual at the forefront for the first time with the Illinois Supreme Court since the law took effect. White Castle claimed originally that the claims brought by the Plaintiffs were time barred and moved to dismiss. The Plaintiffs countered this by arguing that claims under BIPA accrued each time their information was scanned.
Since its enactment in 2008, many lower Illinois courts have held that the claim accrued only on the first scan, however the Illinois Supreme Court took a different approach. The Illinois Supreme Court sided with Plaintiffs and determined that BIPA claims accrued on a scan-by-scan basis. Meaning that every single time a private entity unlawfully scans or transmits a person’s biometrics, a separate claim accrues under the Act.
Further, upon examining the text of the statute, the Illinois Supreme Court determined that because BIPA contained no text limiting accrual to the first scan, contrary to White Castle’s argument, each subsequent scan embodied a separate violation of the privacy law which extended the limitations period and significantly increased the possibility of liability for private entities.
The Court held that this system of accrual was required by BIPA’s statutory language, but recognized that there was the possibility for significant damage awards that the dissenting Justices warned could potentially be “harsh, unjust, absurd, or unwise.” However, the majority of the Court determined that although there was this possibility for such awards, BIPA’s language provided sufficient discretion to the trial judge to prevent such excessive awards since damages under the Act were discretionary rather than mandatory.
Since the Cothron decision was handed down, BIPA claims and ensuing litigation has skyrocketed. According to Bloomberg Law, BIPA filings have increased 65% since December of 2022, with the largest jump in filings coming the month following the Court’s Cothron decision. While BIPA litigation was temporarily held due to White Castle filing a petition for rehearing on this closely contested case, its petition was recently denied on July 18, 2023.
The attorneys at Airdo Werwas, LLC are available to consult with you on matters involving BIPA or data protection. If you have questions or concerns about BIPA, please do not hesitate to contact your current Airdo Werwas attorney.