A plea for a rehearing of the case was denied by the Illinois Supreme Court, which upheld the lower court’s judgement in February that employers can be penalised for each time they allegedly violate the Illinois Biometric Privacy Act.
In a strongly worded dissent released on Tuesday, the same judges who objected to the 4-3 verdict in Latrina Cothron v. White Castle System Inc. urged the state’s highest court to reconsider its phrasing.
There were numerous amicus papers filed by corporate organisations in favour of a rehearing.
If the Illinois legislature wants to change BIPA, it will be up to them now. The last legislative session did not produce the necessary legislation.
The Biometric Information Privacy Act (BIPA), the basis for hundreds of lawsuits against companies, mandates that individuals be given written notice of the collection or storage of their biometric data, as well as an explanation of the data’s intended use and retention period. In addition, enterprises need the subject’s formal permission to proceed.
Only the state of Illinois allows a private right of action for biometric incidents. Plaintiffs can receive up to $5,000 for willful or wanton violations, and $1,000 for careless ones, thanks to a statute passed in 2008.
Supreme Court Justice David K. Overstreet wrote in his dissent that “the implications of the majority’s opinion are severe and arguably oppressive, wholly disproportioned to the violations addressed in the Act, and unreasonable.”
If the plaintiff is allowed to raise her claims on behalf of as many as 9,500 present and former White Castle employees, he said, the total damages in her action might surpass $17 billion as a class.
In his words, the majority ruling “leaves a staggering degree of uncertainty for courts and defendants.”
The majority’s vote to deny a rehearing was met with silence.
Duane Morris LLP partner in Chicago Gerald L. Maatman Jr., who is not involved in the case, commented on the unusual length of the dissent (7 pages). This should serve as a “signal to tell the Illinois General Assembly that the BIPA statute and its damages machinery ought to be overhauled and reexamined,” as he put it.
Mr. Maatman has stated that “business groups coalescing behind an effort to force the General Assembly” to examine the matter is something he expects to happen. He added that the dissent will likely be used as evidence by the defence.
What’s your take on this story? Feel free to share your thoughts.
