LATRINA COTHRON, Individually and on behalf of similarly situated individuals, Plaintiff, v.
No. 19 CV 00382
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
August 7, 2020
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Despite numerous recent suits concerning Illinois’ Biometric Information Privacy Act (BIPA), important questions of statutory interpretation remain unresolved. This case presents two such questions: what acts violate BIPA Section 15(b) and Section 15(d) and when do claims premised on such violations accrue? Plaintiff Latrina Cothron alleges that, in 2007, her employer, White Castle System, Inc. (“White Castle“), implemented a system that involved capturing her fingerprint data and disclosing it to third parties. After BIPA‘s enactment in mid-2008, White Castle continued to operate its system but did not obtain the newly required consent of its employees, thereby violating BIPA Section 15(b)
BACKGROUND2
The facts set forth below are largely the same as those described in the Court‘s prior opinion in this case. See Mem. Op. Order 2-3, ECF No. 117. Latrina Cothron began working for White Castle in 2004 and is still employed by the restaurant-chain as a manager. Sec. Am. Compl. 39, ECF No. 44. Roughly three years after Ms. Cothron was hired, White Castle introduced a fingerprint-based computer system that required Ms. Cothron, as a condition of continued employment, to scan and register her fingerprint in order “to access the computer as a manager and access her paystubs as an hourly employee.” Id. ¶ 40. According to Ms. Cothron, White Castle‘s system involved transferring the fingerprints to two third-party vendors—Cross Match and Digital Persona—as well as storing the fingerprints at other separately owned and operated data-storage facilities. Id. ¶¶ 28-31. Perhaps unsurprisingly—given that the Illinois Biometric Information Privacy Act (“BIPA“) did not exist yet—White Castle did not receive a written release from Ms. Cothron to collect her fingerprints or to transfer them to third parties before implementing the system. Id. ¶ 41.
When the Illinois legislature enacted BIPA in mid-2008, the legal landscape changed but White Castle‘s practices did not—at least not for roughly ten years. Id. ¶¶ 27-28. White Castle continued to use its fingerprint system in the years following BIPA‘s passage and continued to disseminate that data to the same third parties. Id. ¶¶ 28-31. It was not until October 2018 that White Castle provided Ms. Cothron with the required disclosures or a consent form. Id. ¶¶ 45, 48-49. On December 6, 2018, Ms. Cothron filed her class action complaint in the Circuit Court of Cook County, Illinois and the case was subsequently removed to this Court by Cross Match Technologies, Inc. (since dismissed from the case). Mot. J. Pleadings 2, ECF No. 120. After the Court denied White Castle‘s motion to dismiss Ms. Cothron‘s second amended complaint, White Castle filed an answer. Id. In the answer, White Castle raised a statute of limitations defense and subsequently moved for judgment on the pleadings on that basis. Id.
DISCUSSION
A motion for judgment on the pleadings under
I. Waiver
In making her waiver argument, Ms. Cothron ignores the basic framework provided by the Federal Rules of Civil Procedure as well as the language of
II. Timeliness
Ms. Cothron‘s second argument for denying the motion—that, considered on the merits, White Castle‘s statute of limitations defense fails—is substantially stronger; indeed, the Court concludes that it is correct. A statute of limitations defense is an argument about the timeliness of a claim, and timeliness is a function of both the accrual date of a cause of action and the applicable statute of limitations. Nonetheless, in asserting its defense, White Castle limits itself to the issue of accrual and the Court does the same. See Reply Br. 5 n.2, ECF No. 124 (“White Castle has argued that Plaintiff‘s claims are untimely no matter what statute of limitations applies. Should the Court wish to determine the applicable limitations period, White Castle requests additional briefing on the issue.“).4
As a general matter, under Illinois law, a cause of action accrues and the “limitations period begins to run when facts exist that authorize one party to maintain an action against another.” Feltmeier v. Feltmeier, 207 Ill. 2d 263, 278, 798 N.E.2d 75, 85 (Ill. 2003). On the same facts, however, the parties put forth accrual dates that differ by roughly 10 years: White Castle argues that the claims accrued in mid-2008, while Ms. Cothron contends that at least a portion of her claims accrued in 2018. How so far apart? The ten-year delay stems from accepting either of Ms. Cothron‘s two theories of accrual. First, Ms. Cothron contends that the alleged BIPA violations can be understood as falling under an exception to the general rule governing accrual, the continuing violation exception. “[U]nder the ‘continuing tort’ or ‘continuing violation’ rule, ‘where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.‘” Id. (quoting Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 345, 770 N.E.2d 177 (Ill. 2002)).
Applying this doctrine, Ms. Cothron argues that the statute of limitations did not begin to run on any portion of her claim until the final violation (the last time White Castle collected and disseminated her fingerprint before she received BIPA notice and provided her consent). In the alternative, Ms. Cothron contends that each post-BIPA scan of her fingerprint constituted a separate violation of
A. Continuing Violation Exception
At the outset, it is worth noting that Ms. Cothron‘s invocation of the continuing violation exception is ambiguous: it is unclear whether, in her view, White Castle‘s alleged course of conduct amounts to a single ongoing violation of each of the two BIPA provisions at issue or whether her argument is that White Castle violated the statute‘s terms repeatedly but the violations should be viewed as a continuous whole for prescriptive purposes only. Under either interpretation, however, the argument fails.
The continuing violation doctrine is a well-established, but limited exception to the general rule of accrual. In Feltmeier, the Illinois Supreme Court limned the doctrine‘s scope: “A continuing violation or tort is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation.” 207 Ill. 2d at 278, 798 N.E.2d at 85. And those unlawful acts must produce a certain sort of injury for the doctrine to apply: the purpose of the doctrine is “to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought.” Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d 797, 801 (7th Cir. 2008). Thus, the continuing violation doctrine is “misnamed“—“it is [ ] a doctrine not about a continuing, but about a cumulative, violation.” Id. See also Rodrigue v. Olin Employees Credit Union, 406 F.3d 434, 442 (7th Cir. 2005) (“Where a cause of action arises not from individually identifiable wrongs but rather from a series of acts considered collectively, the Illinois Supreme Court has deemed application of the continuing violation rule appropriate.“). By contrast, “the continuing violation rule does not apply to a series of discrete acts, each of which is independently actionable, even if those acts form an overall pattern of wrongdoing.” Id. at 443. Compare Cunningham v. Huffman, 154 Ill. 2d 398, 406, 609 N.E.2d 321, 324-325 (Ill. 1993) (“When the cumulative results of continued negligence is the cause of the injury, the statute of repose cannot start to run until the last date of negligent treatment.“), with Belleville Toyota, 199 Ill. 2d at 349, 770 N.E.2d at 192 (“Rather, each allocation constituted a separate violation of section 4 of the Act, each violation supporting a separate cause of action. Based on the foregoing, we agree with defendants that the appellate court erred in affirming the trial court‘s application of the so-called continuing violation rule.“).
BIPA claims do not fall within the limited purview of this exception. The Illinois Supreme Court has held that a person is “aggrieved within the meaning of Section 20 of the [BIPA] and entitled to seek recovery under that provision” whenever “a private entity fails to comply with one of section 15‘s requirements.” Rosenbach v. Six Flags Entm‘t Corp., 432 Ill. Dec. 654, 663, 129 N.E.3d 1197, 1206 (Ill. 2019). And, as relevant here,
On the facts set forth in the pleadings, White Castle violated
In sum, the Court finds that the continuing violation doctrine does not apply to BIPA violations—at least not to those at issue here—and, as a result, Ms. Cothron‘s right to sue for those violations accrued when the violations occurred. The next question is: when did the alleged violations occur?
II. BIPA Violations Alleged in the Second Amended Complaint
As an alternative argument, Ms. Cothron contends that each post-BIPA scan of her fingerprint constituted an independent violation of
The question of what constitutes a violation of BIPA‘s terms is a pure question of statutory interpretation, and the Illinois Supreme Court has counseled that the “most reliable indicator” of legislative intent is “the language of the statute.” Michigan Ave. Nat. Bank v. Cty. of Cook, 191 Ill. 2d 493, 504, 732 N.E.2d 528, 535 (Ill. 2000). “The statutory language must be given its plain and ordinary meaning, and, where the language is clear and unambiguous, we must apply the statute without resort to further aids of
In full,
No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person‘s or a customer‘s biometric identifier or biometric information, unless it first:
- informs the subject or the subject‘s legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;
- informs the subject or the subject‘s legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and
- receives a written release executed by the subject of the biometric identifier or biometric information or the subject‘s legally authorized representative.
In its only text-based argument to the contrary, White Castle points to the statute‘s language requiring that informed consent be acquired before collection. That means, White Castle urges, that it is the failure to provide notice that is the violation, not the collection of the data. But that reading simply ignores the required element of collection. There is no violation of
The language of
No private entity in possession of a biometric identifier or biometric information may disclose, redisclose, or otherwise disseminate a person‘s or a customer‘s biometric identifier or biometric information unless:
- the subject of the biometric identifier or biometric information or the subject‘s legally authorized representative consents to the disclosure or redisclosure
Instead of providing a plausible alternative reading of the statutory text, White Castle maintains that reading
Where the words employed in a legislative enactment are free from ambiguity or doubt, they must be given effect by the courts even though the consequences may be harsh, unjust, absurd or unwise. Such consequences can be avoided only by a change of the law, not by judicial construction.
Petersen v. Wallach, 198 Ill. 2d 439, 447, 764 N.E.2d 19, 24 (Ill. 2002) (cleaned up) (emphasis added). As a result, the Court is bound by the clear text of the statute. If the Illinois legislature agrees that this reading of BIPA is absurd, it is of course free to modify the statute to make its intention pellucid. But it is not the role of a court—particularly a federal court—to rewrite a state statute to avoid a construction that may penalize violations severely. In any event, this Court‘s ruling is unlikely to be the last word on this subject. On appeal—and possibly upon certification to the Illinois Supreme Court8—White Castle will have ample opportunity to explain why it is absurd to suppose that the legislature sought to impose harsh sanctions on Illinois businesses that ignored the requirements of BIPA for more than a decade.
In sum, the Court concludes that Ms. Cothron has alleged multiple timely violations of both
Date: August 7, 2020
John J. Tharp, Jr.
United States District Judge
Notes
The operation of
Rule 12(h)(2) is relatively simple. The three defenses protected by the rule may be asserted by motion before serving a responsive pleading. Unlike theRule 12(h)(1) defenses, however, if a party makes a preliminary motion underRule 12 and fails to include one of theRule 12(h)(2) objections, she has not waived it, even though, underRule 12(g) , the party may not assert the defense by a second pre-answer motion. As the rule explicitly provides, a defending litigant also may interpose any of theRule 12(h)(2) defenses in the responsive pleading or in any pleading permitted or ordered by the court underRule 7(a) . Moreover, even if these defenses are not interposed in any pleading, they may be the subject of a motion underRule 12(c) for judgment on the pleadings or of a motion to dismiss at trial.