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Seventh Circuit White Castle Privacy Case Certification Debated

Sept. 14, 2021, 5:32 PM

An attorney for White Castle restaurants urged the Seventh Circuit to rule on claim accrual in a closely watched Illinois biometric privacy case rather than certifying the question to the state Supreme Court.

The question should be handled by the U.S. Court of Appeals for the Seventh Circuit because certification is only appropriate in instances of “genuine uncertainty,” argued Melissa Siebert, a partner at Shook Hardy & Bacon LLP who represents defendant White Castle System Inc., during oral argument.

Certification of the question to the Illinois Supreme Court would ensure “consistency and finality” and allow the state court system to analyze a state law, countered Jim Zouras, a partner at Stephan Zouras LLP who represents plaintiff Latrina Cothron.

“We firmly believe the trial court got it right,” Zouras argued in reasoning for the Seventh Circuit to keep the lower court’s reading. In the alternative, it would also be appropriate for the Seventh Circuit to certify the question to the Illinois Supreme Court, he said.

The Seventh Circuit is weighing whether claims under the Illinois Biometric Privacy Act accrue each time a company violates the law, or if claims only accrue at the first instance of a violation.

Cothron accused White Castle of violating her privacy rights under BIPA by collecting her fingerprints as part of a timekeeping system without her written consent. The Northern District of Illinois in August 2020 ruled that Cothron had alleged multiple violations of the law, a decision White Castle appealed.

Judge Frank H. Easterbrook asked Siebert why certification wouldn’t be appropriate, given that BIPA is a state law and it appears the Illinois courts haven’t yet addressed when claims accrue under the statute.

Siebert said there are two cases pending before the Illinois appellate courts concerning issues of accrual, but argued that those are “in their infancy.”

She said the Seventh Circuit should be able to rule on the issue of claim accrual in White Castle in part because it’s already tackled similar cases, including Rosenbach v. Six Flags Entertainment Corp., which dealt with questions of injury under the law.

Rosenbach is not about the statute of limitations” under BIPA, Easterbrook responded, adding that he was looking for “genuine” state cases that might show how Illinois courts would rule in the case.

Claim Accrual

Workers such as Cothron experience a BIPA violation only upon the initial unlawful collection or disclosure of their biometric information, not each time that information is collected or disclosed, Siebert alleged during oral argument.

“Injury occurs at the time the privacy right vanishes, at the time when the choice is made to give up that information,” Siebert argued. “That type of choice happens once.”

Reading the statute to mean each unlawful use or disclosure may constitute a separate BIPA violation could “bankrupt Illinois companies” and lead to “catastrophic” results for businesses using fingerprint-scan timekeeping systems or similar biometric tools, she added.

But Zouras disagreed, arguing that the “plain text of the statute dictates the result” that each infraction is a separate violation under the law.

The law is designed to “instill confidence and ensure safeguards are in place,” regarding the collection of biometric information, Zouras added. A plain reading of the text “fulfills those goals as the legislature intended,” he argued.

Stephan Zouras represents Cothron. Shook Hardy & Bacon represents White Castle.

The Seventh Circuit panel included Easterbrook, Chief Judge Diane S. Sykes, and Judge Michael B. Brennan.

The case is Cothron v. White Castle Sys. Inc., 7th Cir., No. 20-3202, oral argument 9/14/21.

To contact the reporter on this story: Jake Holland in Washington at jholland@bloombergindustry.com

To contact the editors responsible for this story: Kibkabe Araya at karaya@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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