Regardless of its enactment in 2008, the Illinois Biometric Info Privateness Act’s (BIPA) authorized requirements have been largely undeveloped till its emergence to the principle stage circa 2017. However with the choices in Rosenbach v. Six Flags in 2019 (standing) and McDonald v. Symphony in 2022 (staff’ compensation), and the latest $228 million jury verdict in opposition to BNSF Railway within the first-ever BIPA trial, we proceed to see the BIPA panorama take form. With greater than 250 lawsuits filed in 2022 alone, BIPA litigation exhibits no indicators of slowing down. As we look ahead to one other busy 12 months of BIPA litigation in 2023, attorneys on each side of the ‘v.’ eagerly await two crucial selections from the Illinois Supreme Court docket that would considerably affect pending and future litigation.
Statute of Limitations
Tims v. Black Horse Carriers, Inc. (No. 127801) seeks to resolve the longstanding debate concerning the applicable statute of limitations for BIPA actions. As a result of the legislation is silent on the difficulty, the protection bar (together with in Tims) argues that the one-year limitations interval for privateness actions outlined in 735 ILCS 5/13-201 ought to apply. Then again, plaintiffs argue (like in Tims) that the five-year “catch-all” limitations interval contained in 735 ILCS 5/13-205 is extra applicable for actions underneath BIPA. Nevertheless, in 2021, the Illinois Appellate Court docket sophisticated issues when it determined that the one-year and five-year limitations intervals utilized to completely different sections of the Act. See, typically, 2021 IL App (1st) 200563. Particularly, the Appellate Court docket held that the one-year interval underneath § 201 applies to Part 15(c) and 15(d) BIPA claims as a result of these sections contain the “publication” of biometric knowledge, which is a time period explicitly utilized in § 201. Conversely, for the reason that Appellate Court docket discovered that Sections 15(a), (b), and (e) of the BIPA don’t contain the publication of a person’s biometric knowledge, it utilized the five-year limitations interval from § 205 to these sections.
Given the break up amongst limitations and claims by the Appellate Court docket, a reversal by the Illinois Supreme Court docket on any declare could possibly be important for each plaintiffs and defendants. For instance, suppose the Supreme Court docket decides {that a} blanketed one-year limitation applies to BIPA claims. In that case, it may considerably cut back the category dimension of present class actions and positively lead to some time-barred lawsuits. Nevertheless, the other would maintain if the Supreme Court docket decides {that a} blanketed five-year limitation applies. Certainly, lots of of BIPA lawsuits have been stayed for greater than a 12 months as this problem will get resolved, many with a pending movement to dismiss, elevating the statute of limitations problem. Tims was argued earlier than the courtroom in September 2022, and a choice is predicted within the first quarter of 2023.
Declare Accrual
Cothron v. White Castle (No. 128004) will decide whether or not claims asserted underneath 15(b) and 15(d) of BIPA accrue solely as soon as upon the preliminary assortment or disclosure of biometric data, or every time a non-public entity collects or discloses biometric data. Whereas at present earlier than the Illinois Supreme Court docket, the case is pending within the U.S. District Court docket for the Northern District of Illinois. Following the district courtroom’s rejection of White Fort’s “one time solely” accrual principle at abstract judgment, the courtroom discovered the query shut sufficient to warrant an interlocutory attraction underneath 28 U.S.C. § 1292(b). Throughout the attraction, the plaintiff requested the Seventh Circuit to certify the query to the Illinois Supreme Court docket. See 20 F.4th 1156, 1159 (seventh Cir. 2021). The Seventh Circuit obliged and directed the Illinois Supreme Court docket to reply the next query: “Do Part 15(b) and 15(d) claims accrue every time a non-public entity scans an individual’s biometric identifier and every time a non-public entity transmits such a scan to a 3rd get together, respectively, or solely upon the primary scan and first transmission?” Id. at 1167.
Oral argument earlier than the Illinois Supreme Court docket in Cothron occurred in Could 2022. White Fort argued {that a} first-scan principle is suitable as a result of that’s when the privateness proper is first invaded, and the lack of management happens. White Fort additionally careworn that the difficulty of damages is essentially intertwined with the difficulty of accrual and inspired the courtroom to weigh the results of holding that accrual happens at every assortment. Citing proximity to the difficulty earlier than the courtroom, White Fort urged that the damages part be analyzed as a result of the one safeguard in opposition to future plaintiffs in search of damages on a “per-scan” mannequin are Due Course of issues and the chance that decrease courts might not discover such important awards applicable. Whereas conceding that Due Course of issues would doubtless safeguard in opposition to a per-scan damages mannequin, the plaintiff argued that White Fort’s view would obviate the necessity for defendants to course appropriate and would keep away from penalties for present points.
Decision of the declare accrual problem is essential for BIPA litigation. If the courtroom decides {that a} declare accrues upon every scan with out addressing the damages part, penalties for even the smallest of corporations could possibly be astronomical with solely a Due Course of argument to rely on. Certainly, if the courtroom doesn’t handle the damages part of accrual at this juncture, it’ll doubtless lead to one other spherical of stays till the difficulty is set on a later attraction. Like Tims, a choice on this matter is predicted within the first quarter of 2023.
For updated data on these circumstances, the Seyfarth Shaw Industrial Client Class Motion Protection follow group will present detailed summaries of the choices as they’re launched by the Illinois Supreme Court docket.
Compliance Suggestions
Regardless of these BIPA points nonetheless up within the air, there are just a few primary practices that may already be adopted to keep away from, or mitigate publicity underneath the statute:
- Keep a public privateness coverage;
- Completely destroy biometric data in a well timed method;
- Present pre-collection discover;
- Get hold of pre-collection consent;
- Keep safety measures to safeguard biometric data;
- Strictly prohibit gross sales and some other type of taking advantage of biometric data, together with for any distributors; and
- Get hold of vendor compliance with BIPA.
