Last week, an Illinois federal district court granted the defendant’s motion to stay in Stegmann v. PetSmart, No. 1:22-cv-01179 (N.D. Ill.).  The case implicates the evolving law surrounding the scope of the Illinois Biometric Information Privacy Act (“BIPA”) and  a pending Illinois Supreme Court case that could provide an important defense to certain BIPA suits.

The PetSmart plaintiff filed a class action complaint 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 contends that the defendant used a technology that repeatedly collected his—and other employees’—“voiceprints.”  The defendant moved to dismiss on a number of grounds, including that the plaintiff failed to plausibly allege that the data collected constituted a “voiceprint.”  It simultaneously moved to stay the case pending the outcome of a separate case currently before the Illinois Supreme Court, Cothron v. White Castle System, Inc., No. 128004 (Ill.).  The defendant argued that a forthcoming decision in that case could render the plaintiff’s claims time-barred.  

In issuing its stay order, the PetSmart court agreed with the defendant that the decision in Cothron could be “outcome determinative” in PetSmart.  The Cothron court is poised to decide whether claims accrue under Section 15(b) of BIPA “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 upon the first scan and first transmission.”  Cothron v. White Castle System, Inc., 20 F.4th 1156, 1167 (7th Cir. 2021) (certifying the question).  A five-year statute of limitations governs claims brought under BIPA sections 15(a) and 15(b).  Therefore, the PetSmart plaintiff—whose employment began in December 2014, over seven years before he filed suit in January 2022—could see his claims time-barred if Cothron determines that claims only accrue upon “the first scan and first transmission.”

The outcome in Cothron may have important implications for the application of the statute of limitations governing claims under BIPA sections 15(a) and 15(b).  Most significantly, if BIPA claims accrue only “upon the first scan and first transmission” and not each subsequent time a biometric identifier is scanned and transmitted, the statute of limitations may elapse earlier and provide an important defense in fact patterns similar to that at issue in PetSmart.

This case presents yet another example of the evolving nature of the law surrounding BIPA’s scope, other examples of which have been addressed in some of our previous posts.

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Photo of Dominic Booth Dominic Booth

Dominic Booth is an associate in the firm’s Palo Alto office who focuses on commercial litigation and complex class actions. He has experience working with clients in the technology and financial services industries in matters involving privacy, consumer protection, and breach of contract…

Dominic Booth is an associate in the firm’s Palo Alto office who focuses on commercial litigation and complex class actions. He has experience working with clients in the technology and financial services industries in matters involving privacy, consumer protection, and breach of contract claims.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.