Last week, a federal district court in Illinois granted the defendant’s motion to remain in Stegmann versus PetSmart, no. 1:22-cv-01179 (ND Ill.). The case involves developments in the law surrounding the scope of Illinois’ Biometric Information Privacy Act (“BIPA”) and an ongoing case in the Illinois Supreme Court that could provide an important defense certain BIPA lawsuits.
The PetSmart Plaintiff filed a class action lawsuit against his former employer based on alleged violations of Sections 15(a) and 15(b) of the Illinois Biometric Information Privacy Act (“BIPA”). Specifically, he argues that the defendant used technology that repeatedly collected his “voiceprints” and those of other employees. The defendant sought dismissal on a number of grounds, including that the plaintiff did not plausibly claim that the data collected constituted a “voiceprint”. He simultaneously decided to put the case on hold pending the outcome of a separate case currently before the Illinois Supreme Court, Cothron vs. White Castle System, Inc., No. 128004 (Illinois). The defendant argued that an upcoming decision in this case could render the plaintiff’s claims statute-barred.
In issuing his stay order, the PetSmart the court agreed with the defendant that the decision in cothron could be “outcome determining” in PetSmart. The cothron the court is set to decide whether claims accrue under Article 15(b) of the BIPA “each time a private entity scans a person’s biometric identifier and each time an entity private transmits such a scan to a third party, respectively, or only during the first scan and first transmission. Cothron vs. White Castle System, Inc., 20 F.4th 1156, 1167 (7th Cir. 2021) (certifying the matter). A five-year statute of limitations governs claims brought under sections 15(a) and 15(b) of BIPA. Therefore, the PetSmart plaintiff – whose employment began in December 2014, more than seven years before filing suit in January 2022 – could have his claims barred if cothron determines that claims accrue only after “first scan and first transmission”.
The result in cothron may have significant implications for the enforcement of the statute of limitations governing claims under sections 15(a) and 15(b) of BIPA. More importantly, if BIPA claims only arise “on first scan and first transmission” and not each time a biometric identifier is scanned and transmitted, the statute of limitations may expire sooner and provide a defense material in patterns of events similar to the one at issue. in PetSmart.
This case presents another example of the evolving nature of the law surrounding the scope of BIPA, other examples of which have been discussed in some of our previous posts.