On August 7, 2020, White Castle’s motion for judgment on the pleadings was denied in Cothron v. White Castle Sys., No. 19 CV 00382, 2020 U.S. Dist. LEXIS 141391 (N.D. Ill. Aug. 7, 2020). As a result, White Castle is left to litigate a former employee’s claims that the restaurant chain violated various provisions of the Illinois Biometric Information Privacy Act (“BIPA”) with its collection and sharing of the former’s employee’s fingerprint information.

This decision comes on the heels of the Court’s June 16, 2020 holding, which resulted in the partial denial of White Castle’s motion to dismiss. That decision can be found in Cothron v. White Castle Sys., No. 19 CV 00382, 2020 U.S. Dist. LEXIS 104795, at *2 (N.D. Ill. June 16, 2020) and discussed in a previous blog post found here: White Castle Required to Face Manager’s Collecting and Sharing Data Suit.

The facts remain largely the same: in her complaint, Plaintiff Latrina Cothron alleges that in 2007 she was required to register her fingerprint with White Castle who then transferred the fingerprint to two third-party vendors and stored the biometric information at separately owned and operated data storage facilities. In violation of various BIPA sections, Plaintiff also alleges that White Castle failed to obtain a written release from Plaintiff for the collection of her fingerprint, neglected to provide Plaintiff with information regarding the purpose of the collection and subsequent storage, and neglected to make its data retention policy publicly available.

Undeterred by the court’s June decision, a mere two-week’s later White Castle filed its motion for an order granting judgment on the pleadings. In its motion, White Castle argued that Plaintiff’s allegations were time-barred because they accrued in 2007. Plaintiff responded by arguing her claims were timely.

In his opinion, Judge Tharp noted, “[d]espite numerous recent suits concerning [BIPA], important questions of statutory interpretation remain unresolved. This case presents two such questions: what acts violate BIPA Section 15(b) and Section 15(d) and when do claims premised on such violations accrue?”

Judge Tharp began his opinion by criticizing Plaintiff’s argument that White Castle waived its right to assert a statute of limitations defense, calling the argument, “entirely off base,” while simultaneously holding Plaintiff’s additional argument for denying the motion – “considered on the merits, White Castle’s statute of limitations defense fails” –  to be “substantially stronger [and] correct.”

Concerning accrual, the Court held that the right to sue for the alleged violations “accrued when the violations occurred.” Thus, the question became, “when did the alleged violations occur?” To make this determination, Judge Tharp reviewed the language of the applicable BIPA sections and held, “[t]o comply with Section 15(b), White Castle could have provided [Plaintiff] with a release informing her” of the purpose and duration for which her biometric information was being used. However, on the facts alleged, White Castle did not provide this form, nor obtain Plaintiff’s consent in collecting her data, until 2018 at the earliest. White Castle also failed to “obtain consent for multiple future disclosures … until 2018,” for disclosing Plaintiff’s information to third parties, which is a violation of Section 15(d).

Ultimately, Judge Tharp found that Plaintiff had timely alleged multiple violations by White Castle of sections 15(b) and 15(d). Specifically, Judge Tharp found that “White Castle violated Section 15(b) repeatedly when it collected [Plaintiff’] biometric data without first having obtained her informed consent” and “each time that White Castle disclosed [Plaintiff]’s biometric information to a third party without consent, it violated Section 15(d).”

The Court went on to admonish White Castle for not providing a “plausible” alternative reading to BIPA and for focusing its argument on the fact that reading Section 15(b) and Section 15(d) in favor of Plaintiff (i.e., the way the statute is written) would lead to “absurd results because the statutory damages for each violation … would be crippling.” Noting that the damages are “not necessarily ‘absurd,’ as White Castle insists,” Judge Tharp also reminded White Castle what the role of judge entails:

The Court is bound by the clear text of the statue. If the Illinois legislature agrees that this reading of BIPA is absurd, it is of course free to modify the statute to make its intention pellucid. But it is not the role of the court—particularly a federal court—to rewrite a statute to avoid a construction that may penalize violations severely.

Judge Tharp concluded by holding Plaintiff “has alleged multiple timely violations of both Section 15(b) and Section 15(d)[and that] [t]he number of those timely violations will be resolved at a future point.”