Illinois Supreme Court refuses to reconsider divided BIPA ruling

The Illinois Supreme Court refused to reconsider the divided ruling it issued in February that employers can be fined for each time they allegedly violate the Illinois Biometric Privacy Act, in response to a petition for a rehearing of the case.

The same judges who objected to the 4-3 ruling in Latrina Cothron v. White Castle System Inc. called for the state’s high court to reconsider its wording in a strongly worded dissent issued Tuesday.

Numerous business groups had filed amicus briefs supporting a rehearing.

It will now be up to the Illinois General Assembly to reconsider amending BIPA. Legislation to do so failed to pass in the last legislative session.

BIPA, which has led to thousands of court cases filed against employers, requires businesses that store biometric information to inform the subject in writing that the data is being collected or stored and the purpose and duration for which it is being collected. It also requires that businesses receive the subject’s written consent.

Illinois remains the only state that permits a private right of action in biometric cases. The 2008 law enables plaintiffs to be awarded $1,000 for each negligent violation or $5,000 for each intentional or reckless violation.

In his dissent, Justice David K. Overstreet said, “The implications of the majority’s opinion are severe and arguably oppressive, wholly disproportioned to the violations addressed in the Act, and unreasonable.”

He added that White Castle has estimated that if the plaintiff is allowed to bring her claims on behalf of as many as 9,500 current and former White Castle employees, class-wide damages in her action may exceed $17 billion.

He said the court’s majority opinion “leaves a staggering degree of uncertainty for courts and defendants.”

The majority did not issue any comment on its vote to refuse to grant a rehearing.

Gerald L. Maatman Jr., a partner with Duane Morris LLP in Chicago, who is not involved in the case, said the seven-page dissent’s length is unusual.  It is a “signal to tell the Illinois General Assembly that the BIPA statute and its damages machinery ought to be overhauled and reexamined,” he said.

Mr. Maatman said he anticipates “business groups coalescing behind an effort to force the General Assembly” to look at the issue. He also said he anticipates the dissent will be cited by the defense in litigation.