Mary Smigielski Speaks with Law360 About Illinois BIPA Issues in White Castle Case

Chicago, Ill. (May 17, 2022) - Chicago Partner Mary A. Smigielski recently spoke with Law360 about a case in which the Illinois Supreme Court heard arguments today on whether claims under the Illinois Biometric Information Privacy Act (BIPA) accrue only once or every time the law is violated. As the article notes, if the court agrees with the former premise, it would "dramatically rein in the potential scope and damages size of claims that companies violated individuals' privacy."

The Illinois Supreme Court heard White Castle's appeal on a certified question from the Seventh Circuit after it declined to decide the issue last year and instead asked the state's justices to interpret BIPA. Ms. Smigielski noted that, regardless of which way the court decides, "I think it will be good to finally have this issue settled, which will mean that, for better or for worse, a lot of cases will start to proceed," allowing courts to further interpret the law.

In this particular case, Latrina Cothron v. White Castle System Inc., the plaintiff claims the fast-food chain repeatedly violated her and other employees' BIPA rights, since even before the law took effect in 2008, by requiring fingerprint scans without following the statute's data requirements. While BIPA does require companies to obtain express consent before collecting or sharing an individual's biometric information, the statute is not clear on whether consent is required for every scan or disclosure. As the article notes, Illinois' courts are split on this issue, and White Castle's argument that claims should only be based on an initial information scan conflict with BIPA's statutory mentions of data redisclosure and individuals' access to relief from biometric privacy violations.

However, Ms. Smigielski told Law360 that there is a "common sense" aspect to White Castle's argument. The company points to instances when the plaintiff acknowledged its biometric practices and, as Ms. Smigielski explained, BIPA is "rather clear that if you knew or you should have known that your rights were being infringed upon … that is when your claim accrued." She also turned the plaintiffs' argument back on themselves, positing "And when the plaintiffs' bar [argues] all the defendants should have known about BIPA in 2008 the minute it was passed, well what about the plaintiffs? Why shouldn't they have known that they were using this technology?"

Ms. Smigielski is the co-chair of Lewis Brisbois' Illinois Biometric Information Privacy Act (BIPA) Practice, the first in the nation, and head of the firm's Chicago Labor & Employment team. She has been on the cutting edge of BIPA litigation, frequently providing commentary to legal news outlets on the topic and co-authoring an Insight article for Bloomberg Law on the potential nationwide implications of BIPA during the COVID-19 pandemic. Along with her BIPA work, Ms. Smigielski's practice involves class/collective actions and single-plaintiff employment litigation, administrative charges, nationwide counseling, training, and sensitive workplace investigations, including at the C-Suite level. 

Read the full Law360 article, titled "White Castle Aims To Whittle Down BIPA's Scope," here (subscription may be required). Learn more about our Illinois BIPA Practice here.