BIPA After Tims and White Castle:
Now What?
As you likely heard, in two recent rulings, the Illinois Supreme Court finally addressed important statute-of-limitations issues. In Tims v. Black Horse Carriers, the Supreme Court ruled that a five-year statute of limitations applies to BIPA claims. In Cothron v. White Castle System, the Supreme Court held in a 4-3 decision that BIPA claims accrue every time biometric information is collected. Putting those two cases together, it means that the five-year statute of limitations begins running upon the last use of biometric technology by a plaintiff. In Cothron, the Supreme Court expressly acknowledged that its ruling could result in BIPA damages reaching “absurd” levels, but punted that issue to the Illinois legislature (more on BIPA reform below). White Castle has filed a petition for rehearing; while we hope that petition is successful, petitions for rehearing are hard to win and rarely granted.
But this alert isn’t about Tims and White Castle. It’s about what comes next. Literally hundreds of BIPA cases have been stayed waiting for the outcome of Tims and White Castle while defendants searched for a “silver bullet” to reduce BIPA liability. Meanwhile, our team has been actively litigating complex and interesting cases that, for strategic or other reasons, were not stayed. We have engaged in complex fact discovery, deposed numerous BIPA plaintiffs and their “experts,” retained and deployed our own experts, and filed some of the first briefs on summary judgment and class certification in BIPA cases (which are still awaiting ruling).
Based on our experience litigating BIPA cases well past a motion to dismiss, here are some thoughts on what comes next:
Facts will finally matter. It’s easy for a plaintiff to file a BIPA complaint. It is much harder to prove a BIPA case on the merits. The B in BIPA is for “Biometric.” The ordinary meaning of “biometric” is the use of physical characteristics to identify an individual. Many BIPA cases have been filed against companies that don’t use the technology at issue to identify an individual. For example, many instances of virtual try-on technology do not contain any identification component at all; they simply apply makeup or hair color to the user’s image without any means of identifying the individual. Facts matter.
A long-term strategy is needed. Litigation always has ups and downs. The denial of a motion to dismiss is not the end of the case, especially because, at that stage, facts must be taken as true. Discovery should be approached not solely as a burden, but as an opportunity to go on offense by challenging the other side’s knowledge and claims, questioning whether class certification is appropriate, and gathering facts for use by experts down the road. Whether the ultimate goal is a trial victory or a palatable settlement, BIPA defendants need to take steps to control their destiny.
Presentation matters. Biometric technology seems complicated. Sometimes it is, but often it isn’t. Simple, persuasive storytelling, examples and graphics make the difference. Explaining complicated science and technology in an accessible way is a hallmark of our firm. If you would like to see examples of our work, please email the Chair of our Biometric Privacy Practice, Matt Wolfe.
BIPA Reform is Possible, but Unlikely
Legislative action on BIPA remains a possibility—though if history is any guide, an unlikely one. Several BIPA reform bills were introduced prior to Illinois’ legislative deadlines, but those bills have all been assigned to committees that historically have refused to call proposed BIPA amendments for a vote. At this point, we do not expect the existing amendments to pass. However, in the Cothron decision, the Illinois Supreme Court invited the legislature to clarify its intent “regarding the assessment of damages” under BIPA.
This has spurred interest in BIPA reform among some historically unfriendly legislators and other stakeholders, such as the Illinois Attorney General’s office. Given the current status of the Illinois legislative session, the likely output for this new interest—if any—will come in the form of a flurry of activity incorporating BIPA reform into other bills at the end of the legislative session. In the meantime, conversations among legislators, trade associations, lobbyists and other stakeholders will continue behind the scenes to see if some consensus can be reached on a legislative response to Cothron. If you would like more information on how to get involved, please let us know.
We will continue these updates periodically.
