A federal court recently paused a litigation brought under Illinois’s Biometric Information Privacy Act (“BIPA”), pending the outcome of several other cases which could be dispositive.  Herron v. Gold Standard Baking, Inc., 2021 U.S. Dist. LEXIS 69336 (N.D. Ill.).  Read on for a recap of issues on the horizon for this frequently litigated data privacy statute.

First, some background.  Plaintiff filed a complaint asserting a claim under BIPA against her employer on November 13, 2020.  As you will recall, BIPA was enacted in 2008 and protects the personal biometric information of Illinois residents.  The statute is enforced through a private right of action that is available to “[a]ny person aggrieved by a violation.”  740 ILCS 14/20.  To generalize, Section 15 of the statute places restrictions on the collection, retention, and disclosure of biometric information.  Section 15(b) of BIPA requires “private entities seeking to collect biometric information to first (1) inform the person whose biometrics are being collected, in writing, that the information is being collected or stored; (2) inform the person in writing of the “specific purpose and length of term” for which the biometrics are being collected, stored, and used; and (3) receive a written release from the person.”

In this case, Plaintiff alleged that Defendant failed to comply with (1) and (2) and that each fingerprint scan collected by Defendant was a separate violation of BIPA.  The Defendant sought a stay of the litigation, pending the resolution of BIPA cases before the Illinois Supreme Court, the Illinois Appellate Court, and the Seventh Circuit Court of Appeals.

As a recap, there are several BIPA litigations pending which may have a significant impact for cases brought under this statute going forward.  These cases include:

• McDonald v. Symphony Bronzeville Park, LLC, No. 126511 (Ill.): Pending before the Illinois Supreme Court, will address question of whether BIPA claims brought by employees against their employers are preempted by the Illinois Workers’ Compensation Act (“IWCA”), 820 ILCS 305/1, et seq.

• Tims v. Black Horse Carriers, Inc., No. 1-20-0562, and Marion v. Ring Container Techs., LLC, No. 3-20-0184: Two cases pending before Illinois Appellate Courts that may decide whether BIPA claims are potentially subject to a one-, two-, or five-year statute of limitations.

• In Re: White Castle System, Inc., No. 20-8029, Dkt. 9 (7th Cir. Nov. 9, 2020): A Seventh Circuit decision which will address whether a private entity violates BIPA only when it firstcollects or discloses an individual’s biometric data without making the required disclosures, or whether a violation occurs each time the entity collects or discloses the data.

For purposes of Herron, the court found that a stay pending the the White Castle decision was appropriate, because the outcome of that case could be dispositive of the timeliness of Plaintiff’s claims.  This was because, based on the allegations in the Complaint, Plaintiff first swiped her fingerprint in October 2017, and she filed her complaint in November 2020.  As such, if the Seventh Circuit finds that a BIPA violation occurs only when an entity first collects an individual’s biometric data, Plaintiff’s claims may be time-barred (provided, of course, only if Tims and Marion also find that a one or two-year statute of limitations applies to BIPA claims).

With judicial economy in mind, the Herron court decided to stay the case, choosing to see if any of the questions before it would be answered by Tims, Marion, or White Castle.  CPW will be keeping an eye on all three, and this case as well, to keep you informed.  Stay tuned.