A federal appellate court said Monday that the Illinois Supreme Court should rule on whether violations of state biometric law occur each time an illegal biometric scan is performed, in a case that will determine companies' potential liability under the law.
The 7th U.S. Circuit Court of Appeals in Chicago, Latrina Cothron v. White Castle System Inc., was brought by a manager of a restaurant in Illinois White Castle, who accused the chain of violating the 2008 Illinois Biometric Information Privacy Act.  BIPA requires companies that store biometric information in writing to inform the subject that the data is collected or stored and for what purpose and duration it is collected, and that they obtain the subject's written consent.
Miss. Cothron claimed that each unauthorized fingerprint scan amounted to a separate violation of the statutes, so that a new claim arose with each scan. The U.S. District Court in Chicago ruled in Ms. Cothron's advantage in the case in August 2020.
White Castle claimed that only the first scan played a role for accrual purposes and that her first scan took place in 2008, or more than a decade before she filed the lawsuit, it was therefore outside the statute of limitations.
"The disagreement, in a different way, is whether the law should be treated as a junk fax charter for which a claim arises for each unwanted fax … or instead as certain violations of integrity and reputation that occur only at the first publication of defamation
In Monday's ruling, the panel of three judges gave three reasons why the issue should be decided by the Illinois Supreme Court: There is uncertainty about how state law is applied; the legal issue is "general and is likely to return "and the law is a" unique Illinois statute regularly enforced by federal courts. "
Actors in the case did not respond to requests for comment.
A district court in the United States. in Peoria, Illinois, held in October that a policyholder is liable for protection under a liability policy for employment procedures for disputes filed under the BIPA.