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Federal court asks Illinois Supreme Court for biometrics ruling


A federal appeals court said Monday that the Illinois Supreme Court should decide whether violations under the state’s biometric law occur each time an illegal biometric scan is performed, in a case that will determine businesses’ potential liability under the law.

The putative class action before the 7th U.S. Circuit Court of Appeals in Chicago, Latrina Cothron v. White Castle System Inc., was filed by a manager of an Illinois White Castle restaurant, who charged the chain with violating the 2008 Illinois Biometric Information Privacy Act .

BIPA requires businesses that store biometric information to inform the subject in writing that the data is being collected or stored and the purpose and duration for which it is being collected, and also that they obtain the subject’s written consent.

Ms. Cothron argued that every unauthorized fingerprint scan amounted to a separate violation of the statute, so that a new claim accrued with every scan. The U.S. District Court in Chicago ruled in Ms. Cothron’s favor in the case in August 2020.

White Castle argued that only the first scan mattered for accrual purposes, and because her initial scan occurred in 2008, or more than a decade before she had filed suit, it was therefore beyond the statute of limitations.

“The 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 occur only at the initial publication of defamatory material,” the appeals court said.

In Monday’s ruling the three-judge appeals court panel provided three reasons why the issue should be decided by the Illinois Supreme Court: There is uncertainty as to how state law applies; the legal question is “general and likely to recur” and the Act is a “unique Illinois statute regularly applied by the federal courts.”

Attorneys in the case did not respond to requests for comment.

A U.S. District Court in Peoria, Illinois, held in October that a policyholder is owed coverage under an employment practices liability policy for litigation filed under BIPA.