After its February 2, 2023, decision in Tims v. Black Horse Carriers, Inc., which held that a five-year statute of limitations applies to all claims brought under the Illinois Biometric Information Privacy Act (“BIPA”), the Illinois Supreme Court has now answered the question of when a BIPA claim accrues: each time an entity scans or transmits an individual’s biometric identifier or information.     

In Cothron v. White Castle System, Inc., the plaintiff filed a putative class action alleging violations of Section 15(b) and 15(d) of BIPA for White Castle’s alleged collection and disclosure of plaintiff’s fingerprint scans during the course of her employment. The timeline became a critical component of this case: plaintiff began working at White Castle in 2004, BIPA was enacted in 2008, and the plaintiff alleged that White Castle did not attempt to obtain her consent until 2018—a decade after BIPA took effect. 

After the case was removed to the Northern District of Illinois pursuant to the Class Action Fairness Act, White Castle moved for judgment on the pleadings, arguing that the plaintiff’s claim accrued in 2008, with the first fingerprint scan after BIPA was enacted. Even assuming the more generous five-year statute of limitations, the plaintiff’s claim was untimely, according to White Castle. Conversely, Cothron argued that a new claim accrued each time her fingerprint was scanned—not just the first time. District Judge John J. Tharp agreed with the plaintiff and denied White Castle’s motion. Judge Tharp also certified his order for immediate appeal to the Seventh Circuit, which accepted the certification.

Cothron requested the Seventh Circuit certify the question to the Illinois Supreme Court. In its decision, the Seventh Circuit briefly addressed the parties’ arguments and Illinois general claim accrual principles, but ultimately held that the uncertainty surrounding this novel question warranted certification to the Illinois Supreme Court.

Answering the question in favor of Cothron, the Illinois Supreme Court held that the plain language of the statute supports interpretation of a separate accrual each time biometric information is collected (Section 15(b)), and each time biometric information is transmitted (Section 15(d)). The Court summarily dismissed White Castle’s arguments that were not rooted in the text of the statute itself, holding that the language is clear.

Notably, the Court acknowledged White Castle and its supporting amici arguments that allowing claims for each collection or transmission could potentially result in “astronomical” damage awards and “annihilative liability” not contemplated by the legislature. Nevertheless, the Court held that Illinois legal principles require the plain language of the text to be given effect, “even though the consequences may be harsh, unjust, absurd or unwise.” (citing Cothron, 477 F. Supp. 3d at 734). The Court further held that such policy-based concerns are best addressed by the legislature.

Key Takeaways:

  • The combination of the Tims decision applying a five-year statute of limitations and Cothron exponentially expands potential liability of BIPA defendants.
  • BIPA claims have already garnered substantial damage awards, including a $228 million federal jury verdict in Rogers v. BNSF Railway. The Rogers award only considered a single claim accrual.
  • The Illinois legislature may need to step in and address potentially annihilative damages.