On November 30, 2023, the Illinois Supreme Court issued a much-anticipated decision in Mosby v. The Ingalls Memorial Hospital, answering a certified question about whether biometric information collected from health care workers is protected by the Illinois Biometric Information Privacy Act (BIPA) if that information is used for purposes related to health care treatment, payment, or operations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Court ruled that when health care worker data is collected for purposes of health care treatment, payment, or operations under HIPAA, the information is excluded from protection under BIPA.

Mosby involved a putative class action claim brought by nurses whose biometric information allegedly was collected to identify them before dispensing medication to patients.  The trial court and Illinois Appellate Court had ruled that these collections were covered by BIPA because BIPA’s exclusions for “health care treatment, payment, or operations under HIPAA” were directed at protecting patient data, not health care worker data.Continue Reading Illinois Supreme Court: Collection of Biometric Data for Health Care Treatment, Payment, or Operations Is Exempt from BIPA

In a ruling that maintains the status quo created by the Illinois Supreme Court’s holding in Cothron v. White Castle System, Inc., 2023 IL 128004, the Seventh Circuit recently affirmed the trial court’s ruling that certain of the defendant’s alleged violations of the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/1 et seq., are not barred by the five-year statute of limitations.  As discussed in greater detail in an earlier BIPA Bellweather post the Illinois Supreme Court’s Cothron decision held that a separate claim accrues under BIPA each and every time biometric data or information is collected, scanned and/or disclosed. Continue Reading SEVENTH CIRCUIT FOLLOWS ILLINOIS SUPREME COURT PRECEDENT AND FINDS BIPA CLAIMS TIMELY  

In a highly anticipated decision issued in February 2023, the Illinois Supreme Court held that a separate claim accrues under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.) each and every time biometric data or information is collected, scanned and/or disclosed.  Defendant White Castle System, Inc. (“White Castle”) filed a petition for rehearing, seeking to overturn the Cothron decision.  On July 18, 2023, the Illinois Supreme Court denied White Castle’s petition and left in place a standard that is likely to have a profound impact on the valuation of BIPA claims.   Continue Reading BIPA Bellweather: Back to the BIPA Norm—Illinois Supreme Court Refuses to Reconsider Cothron Decision

In a landmark decision, U.S. District Judge Matthew Kennelly vacated a $228 million damages award in Richard Rogers v. BNSF Railway Co., the first case tried to a verdict under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.), and ordered a new jury trial limited to the question of damages. (See full Opinion and Order here.) The Rogers ruling applies the Illinois Supreme Court’s decision in Cothron v. White Castle System, Inc. finding that the amount of damages in a BIPA action is discretionary, not mandatory. A jury will ultimately exercise that discretion in a subsequent trial on damages.    Continue Reading BIPA Bellweather: A Glimmer of Hope? Court Vacates $228 Million Judgement From First BIPA Jury Trial

In a highly anticipated decision, the Illinois Supreme Court recently held that a separate claim accrues under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.) each time biometric data or information is collected and/or disclosed.  The Supreme Court’s holding in Cothron v. White Castle System, Inc., 2023 IL 128004, is likely to have a profound impact on both the ability of plaintiffs to file BIPA claims and the calculation of liquidated damages for such claims.   Continue Reading BIPA ALERT: Illinois Supreme Court Opens the Door to “Punitive, Crippling Liability” for Illinois Businesses

In a ruling that is unlikely to significantly alter the landscape of litigation under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.), the Illinois Supreme Court recently clarified that a five-year statute of limitations is applicable to all claims under the Act.  The Supreme Court’s holding in Tims, et al. v. Black Horse Carriers, Inc. clarifies the applicable statute of limitations period for BIPA claims, but does not address the critical question of when claims accrue under the Act.Continue Reading BIPA ALERT: Five Year Statute of Limitations Applicable to All BIPA Claims

In a landmark decision, a Chicago federal jury found that BNSF Railway Co. (“BNSF”) violated the Illinois Biometric Information Privacy Act (“BIPA” or the “Act” (740 ILCS 14/1 et seq.) resulting in a judgment of $228 million against BNSF. The speed in which the jury delivered its verdict, and the scope of the damages calculated by the Court, should give pause to any employer or entity facing BIPA claims.
Continue Reading BIPA ALERT: $228M Judgment in First BIPA Jury Trial

FingerprintIn yet another blow to employers facing claims under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.), the Illinois Supreme Court held that the Illinois Workers’ Compensation Act (“IWCA”) (820 ILCS 305/1 et seq.) does not preempt BIPA claims for statutory damages brought by employees.  The Court’s holding in McDonald v. Symphony Bronzeville Park, LLC, et al. awas not unexpected by most BIPA practitioners, and will likely trigger the resumption of many dozens of BIPA workplace lawsuits which were stayed while the Illinois justices considered the case.
Continue Reading Illinois Supreme Court Eliminates Another BIPA Defense

FingerprintIn the aftermath of two recent appellate court decisions addressing when claims under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.) accrue, it appears likely that the Illinois Supreme Court will need to provide clarity on this critical question. First, the Appellate Court of Illinois, First District, found in Watson v. Legacy Healthcare Financial Services, LLC, et al.  that claims under sections 15(a) and (b) of the Act accrue with each and every capture and use of a plaintiff’s biometric identifier or information. Second, in Cothron v. White Castle System, Inc. the Seventh Circuit Court of Appeals declined to directly address the issue of when a claim under BIPA accrues, and instead has certified the question for review by the Illinois Supreme Court. While the holding in Watson provides some clarity as to when certain BIPA claims accrue, it leaves open critical questions regarding how to calculate: (i) the number of BIPA violations; and (ii) monetary damages under the Act.
Continue Reading Two Recent Developments Promise to Shed Light on Accrual of BIPA Claims

Welcome back to Vedder Price’s BIPA Bellwether series. As with our TCPA Turnstile, we intend for the BIPA Bellwether to serve as a periodic report on latest developments.

Last week, the Southern District of Illinois decided to dismiss the lawsuit in Barton v. Swan Surfaces LLC, No. 20-CV-499-SPM, 2021 WL 793983 (S.D. Ill. Mar. 2, 2021). In doing so, the Southern District joined the U.S. Northern District’s trend of finding claims brought under the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14 et seq., to be preempted by the federal Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, when interpretation of a collective bargaining agreement is required. This growing trend suggests that Illinois federal courts are beginning to rein in the cottage industry among class action attorneys that BIPA has sparked.Continue Reading BIPA Bellwether: New U.S. Southern District of Illinois Decision Holds Labor Management Relations Act Preempts Employee BIPA Claims