The Seventh Circuit U.S. Court of Appeals has certified a question to the Illinois Supreme Court over the accrual of claims under the Illinois Biometric Information Privacy Act (BIPA). The question, posed by the court in Cothron v. White Castle Systems, Inc., reads:
“Do section 15(b) and 15(d) claims accrue each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?”
The case was brought by an employee of the White Castle hamburger chain, which requires fingerprint scans for employees to access computer systems. The plaintiff charged that sharing her fingerprints with a third party vendor violated the law.Cothron v. White Castle Sys., No. 20-3202, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021).
Opponents to such a finding argue that an accrual rule based on each collection would pose potentially existential damages — especially in the class action context — since BIPA provides for statutory damages of $1,000 or $5,000 per violation. Should the court determine that the first scan is the only scan that starts the statute of limitations clock ticking, anyone bringing a claim more than five years later would be out of luck, even if their private biometric data continued to be transmitted more than five years after the first occurrence. Opponents to such a finding also argue that an accrual rule based on each collection would pose...
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