Federal Court docket Calls on Illinois Supreme Court docket to Rule Biometrics – Enterprise Insurance

A federal appeals court said Monday that any time an illegal biometric scan is performed, the Illinois Supreme Court should determine whether there has been a violation of the state's biometric law in a case that determines the potential liability of companies under the law.

The alleged class action lawsuit in the 7th Chicago Court of Appeals, Latrina Cothron v White Castle System Inc., was brought by a manager of an Illinois White Castle restaurant accusing the chain of violating the Illinois Biometric Information Privacy Act of 2008.

The BIPA requires companies that store biometric data to inform the data subject in writing about the collection or storage of the data as well as the purpose and duration of the collection and to obtain the data subject's written consent.

Ms. Cothron argued that each unauthorized fingerprint scan is a separate violation of the law, so each scan creates a new claim. The U.S. District Court in Chicago ruled in Ms. Cothron's favor in August 2020.

White Castle argued that only the first scan was important for delineation purposes, and therefore, since its first scan was in 2008 or more than a decade before the lawsuit was filed, it was outside the statute of limitations.

"The disagreement, to put it another way, is whether the law should be treated like a junk fax law that creates a claim for every unsolicited fax … or instead like certain privacy and reputational damage that only happens the first time defamatory is posted Material occur. "Said the appellate court.

In Monday's ruling, the three-judge appeals court gave three reasons why the Illinois Supreme Court should decide the matter: there is uncertainty about how state law will apply; the legal issue is "general and likely to recur" and the law is a "unique Illinois law that is regularly applied by the federal courts".

The lawyers on the case did not respond to requests for comment.

A US district court in Peoria, Illinois, ruled in October that a policyholder is owed insurance coverage under liability insurance for labor practices for litigation filed under BIPA.

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