Trade associations weigh in on backlog of claims under Illinois biometric information privacy law | Jackson Lewis CP

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Adopting a “by analysis” theory of accumulation or liability under Illinois’ Biometric Information Privacy Act (BIPA) would lead to absurd and unfair results, a brief argued. friend of the court filed by Jackson Lewis in Cothron v. White Castle Systems, Inc., to the Illinois Supreme Court, on behalf of a coalition of trade associations whose more than 30,000 members employ about half of all workers in the state of Illinois.

Associations include Illinois Manufacturers’ Association, National Association of Manufacturers, Illinois Health and Hospital Association, Illinois Retail Merchants Association, Chemical Industry Council of Illinois, Illinois Trucking Association, Mid-West Truckers Association and the Chicagoland Chamber of Commerce (collectively, the Associations).

In Cothron, the Illinois Supreme Court will decide whether claims under sections 15(b) and (d) of BIPA, 740 ILCS 14/1, et seq., “accumulate each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only on the first scan and the first transmission. The United States Court of Appeals for the Seventh Circuit certified this issue for the Supreme Court of Illinois, noting that “the issue of accrual of claims under statute is a close, recurring, and bitterly contested, of great legal and practical consequence that requires authoritative guidance from the Illinois Supreme Court. Cothron vs. White Castle Sys., Inc.20 F.4e 1156, 1166 n.2 (7th Cir. 2021).

In the brief, Jackson Lewis argued on behalf of the associations that an interpretation of BIPA that allows for a “by analysis” theory of accumulation or liability would lead to absurd and unfair results that could bankrupt the companies of Illinois and drive thousands of Illinois employees out of work. This expansive interpretation would be contrary to BIPA’s remedial purpose, which was to promote the adoption of common sense data privacy practices to minimize the risk that biometric information could be accessed or used inappropriately.

To date, more than 1,450 class action lawsuits have been filed under BIPA. Illinois Supreme Court expected to note widespread interest cothron the case generated, as well as the potentially ruinous ramifications that a “paranalytic” interpretation of accrual or liability would have on Illinois businesses. For these reasons, Jackson Lewis urged the Illinois Supreme Court to rule that claims under sections 15(b) and (d) of BIPA accrue only once, upon first scanning and of the first transmission of biometric data.

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