Cothron v. White Castle Sys., Inc.

• Docket Number: Docket No. 128004
• Decision Date: 17 February 2023
• Citation: 2023 IL 128004,216 N.E.3d 918,466 Ill.Dec. 85
• Parties: Latrina COTHRON, Appellee, v. WHITE CASTLE SYSTEM, INC., Appellant.
• Court: Illinois Supreme Court

2023 IL 128004

216 N.E.3d 918

466 Ill.Dec. 85

Latrina COTHRON, Appellee,

v.WHITE CASTLE SYSTEM, INC., Appellant.

Docket No. 128004

Supreme Court of Illinois.

Filed February 17, 2023

Rehearing Denied July 18, 2023

Melissa A. Siebert and Erin Bolan Hines, of Cozen O'Connor, of Chicago, for appellant.

Ryan F. Stephan, James B. Zouras, Andrew C. Ficzko, and Teresa M. Becvar, of Stephan Zouras, LLP, of Chicago, for appellee.

Nadine C. Abrahams, Jody Kahn Mason, Jason A. Selvey, and Jeffrey L. Rudd, of Jackson Lewis P.C., of Chicago, for amici curiaeIllinois Manufacturers’ Association et al.

Gretchen M. Wolf, Amy Van Gelder, William Ridgway, and Gail E. Lee, of Skadden, Arps, Slate, Meagher & Flom LLP, of Chicago, Meredith C. Slawe and Michael W. McTigue Jr., of Skadden, Arps, Slate, Meagher & Flom LLP, of New York, New York, and Angelo I. Amador, Deborah R. White, and Stephanie A. Martz, all of Washington, D.C., for amici curiaeRestaurant Law Center et al.

Michael A. Scodro, Matthew D. Provance, and Jed W. Glickstein, of Mayer Brown LLP, of Chicago, for amici curiae Illinois Chamber of Commerce et al.

Randall D. Schmidt, of Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School, of Chicago, and Jeffrey R. White, of the American Association for Justice, of Washington, D.C., amici curiae.

Catherine Simmons-Gill, of Offices of Catherine Simmons-Gill, LLC, and Chiquita L. Hall-Jackson, of Hall-Jackson & Associates, PC, both of Chicago, for amici curiae NELA/Illinois et al.

Megan Iorio(pro hac vice) and Sara Geoghegan, of Electronic Privacy Information Center, of Washington, D.C., amicus curiae.

JUSTICE ROCHFORDdelivered the judgment of the court, with opinion.

¶ 1This case requires us to construe section 15(b)and15(d) of the Biometric Information Privacy Act(Act)( 740 ILCS 14/15(b), (d)(West 2018)) in an action alleging that an employer violated the Act when it repeatedly collected fingerprints from an employee and disclosed that biometric information to a third party without consent.Specifically, the United States Court of Appeals for the Seventh Circuit certified the following question of law to this court: "Do section 15(b)and15(d) claims accrue each time a private entity scans a person's biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?"Cothron v. White Castle System, Inc. , 20 F.4th 1156, 1167(7th Cir.2021).We hold that a separate claim accrues under the Act each time a private entity scans or transmits an individual's biometric identifier or information in violation of section 15(b) or 15(d).

¶ 2 I. BACKGROUND

¶ 3We recite the facts as provided by the Seventh Circuit in its certification ruling.See, e.g. , In re Hernandez , 2020 IL 124661, ¶ 5, 443 Ill.Dec. 11, 161 N.E.3d 135.The controversy arises from a proposed class action filed by plaintiff, Latrina Cothron, on behalf of all Illinois employees of defendant, White Castle System, Inc.(White Castle).Plaintiff originally filed her action in the circuit court of Cook County against White Castle and its third-party vendor, Cross Match Technologies.Cross Match Technologies removed the case to federal court under the Class Action Fairness Act of 2005( 28 U.S.C. §§ 1332(d),1453 (2018) ).Plaintiff later voluntarily dismissed Cross Match Technologies from her action and proceeded solely against White Castle in the United States District Court for the Northern District of Illinois.

¶ 4 According to her complaint, plaintiff is a manager of a White Castle restaurant in Illinois, where she has been employed since 2004.Shortly after her employment began, White Castle introduced a system that required its employees to scan their fingerprints to access their pay stubs and computers.A third-party vendor then verified each scan and authorized the employee's access.

¶ 5 Generally, plaintiff's complaint alleged that White Castle implemented this biometric-collection system without obtaining her consent in violation of the Act( 740 ILCS 14/1 et seq.(West 2018)), which became effective in 2008(seePub. Act 95-994, § 1(eff. Oct. 3, 2008)).Section 15(b) of the Act provides that a private entity may not "collect, capture, purchase, receive through trade, or otherwise obtain" a person's biometric data without first providing notice to and receiving consent from the person.740 ILCS 14/15(b)(West 2018).Section 15(d) provides that a private entity may not "disclose, redisclose, or otherwise disseminate" biometric data without consent.Id.§ 15(d).

¶ 6Plaintiff asserted that White Castle did not seek her consent to acquire her fingerprint biometric data until 2018, more than a decade after the Act took effect.Accordingly, plaintiff claimed that White Castle unlawfully collected her biometric data and unlawfully disclosed her data to its third-party vendor in violation of section 15(b)and15(d), respectively, for several years.

¶ 7 In relevant part, White Castle moved for judgment on the pleadings, arguing that plaintiff's action was untimely because her claim accrued in 2008, when White Castle first obtained her biometric data after the Act's effective date.Plaintiff responded that a new claim accrued each time she scanned her fingerprints and White Castle sent her biometric data to its third-party authenticator, rendering her action timely with respect to the unlawful scans and transmissions that occurred within the applicable limitations period.

¶ 8The district court agreed with plaintiff and denied White Castle's motion. Cothron v. White Castle System, Inc. , 477 F. Supp. 3d 723, 734(N.D. Ill.2020).The court later certified its order for immediate interlocutory appeal, finding that its decision involved a controlling question of law on which there is substantial ground for disagreement.

¶ 9 The United States Court of Appeals for the Seventh Circuit accepted the certification.After determining that plaintiff had standing to bring her action in federal court under article III of the United States Constitution( U.S. Const., art. III ), the Seventh Circuit addressed the parties’ respective arguments on the accrual of a claim under the Act.Cothron , 20 F.4th at 1162-65.Ultimately, the Seventh Circuit found the parties’ competing interpretations of claim accrual reasonable under Illinois law, and it agreed with plaintiff that "the novelty and uncertainty of the claim-accrual question" warranted certification of the question to this court.Id. at 1165-66.The Seventh Circuit observed that the answer to the claim-accrual question would determine the outcome of the parties’ dispute, this court could potentially side with either party on the question, the question was likely to recur, and it involved a unique Illinois statute regularly applied by federal courts.Id. at 1166.Thus, finding the relevant criteria favored certification of the question, the Seventh Circuit certified the question to this court.¹Id. at 1166-67.

¶ 10We chose to answer that question.SeeIll.S. Ct. R. 20(a)(eff. Aug. 1, 1992).The Illinois Chamber of Commerce, Chamber of Commerce of the United States, Retail Litigation Center, Inc., Restaurant Law Center, National Retail Federation, Illinois Manufacturers’ Association, National Association of Manufacturers, Illinois Health and Hospital Association, Illinois Retail Merchants Association, Chemical Industry Council of Illinois, Illinois Trucking Association, Mid-West Truckers Association, and Chicagoland Chamber of Commerce were granted leave to file amicus curiae briefs in support of White Castle's position.Ill. S. Ct. R. 345(eff. Sept. 20, 2010).The American Association for Justice, Employment Law Clinic of the University of Chicago Law School's Edwin F. Mandell Legal Aid Clinic, NELA/Illinois National Employment Law Project, Raise the Floor Alliance, and Electronic Privacy Information Center (EPIC) were granted leave to file amicus curiae briefs in support of plaintiff's position.Id.

¶ 11 II.ANALYSIS

¶ 12 The certified question asks: "Do section 15(b)and15(d) claims accrue each time a private entity scans a person's biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?"When answering this question, we assume, without deciding, that White Castle's alleged collection of plaintiff's fingerprints and transmission to a third party was done in violation of the Act.

¶ 13Section 15(b) of the Act provides:

"No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or biometric information, unless it first:

(1) informs the subject or the subject's legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;

(2) informs the subject or the subject's legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and

(3) receives a written release executed by the subject of the biometric identifier or biometric information or the subject's legally authorized representative."740 ILCS 14/15(b)(West 2018).

¶ 14Section 15(d) of the Act provides, in relevant part, that

"[n]o private entity in possession of a biometric identifier or biometric information may disclose, redisclose, or otherwise disseminate a person's or a customer's biometric identifier or biometric information unless:

*** the subject of the biometric identifier or biometric information or the subject's legally authorized representative consents to the disclosure or redisclosure[.]"Id.§ 15(d)(1).

¶ 15 Relevant to this case, the Act further defines the term "biometric identifier" to include a fingerprint and the term "biometric information" to include any information based on an individual's...