On March 3, 2022, the NAM filed an amicus brief asking the Illinois Supreme Court to reject an interpretation of the Illinois Biometric Information Privacy Act (BIPA)—one of the most stringent biometric privacy statutes in the country—that allows for a “per-scan” theory of accrual and recovery of statutory liquidated damages. Employers commonly use biometric data, including fingerprints, voice prints, and vein patterns in a person’s palm, for time management, security access, and safety reasons. Passed in 2008, the BIPA contains a comprehensive set of rules for companies collecting biometric data from Illinois residents, with a focus on preventing identity theft through responsible use and handling. The statute creates a private right of action and provides for statutory damages of $1,000 for each negligent violation and $5,000 for each intentional violation, which has led the BIPA to become a trial bar favorite—a whopping 1,450 BIPA class action lawsuits have been filed since 2017.
The question presented in this case is whether BIPA claims “accrue 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.” The NAM’s brief argues that the only reasonable interpretation of a law focused on ensuring notice and consent is that a violation occurs when biometric identifiers or biometric information is first collected or obtained. Given the remedial purposes of the BIPA, any damages resulting from alleged violations of the statute should encourage compliance, but not be punitive in nature. The “per-scan” theory of accrual suggested by the plaintiff here would lead to absurd and unjust results, as a single employee could scan 1,000 times over the course of a year.
Unfortunately, on February 27, 2023, the Illinois Supreme Court held that BIPA’s plain language "shows that a claim accrues under the Act with every scan or transmission of biometric identifiers or biometric information without prior informed consent."
On March 10, 2023, we filed in amicus brief requesting that the Supreme Court of Illinois reconsider its decision because it mistakenly construed BIPA in a way that would lead to the absurd result of astronomical damages awards that could bankrupt businesses, which is consistent with neither legislative intent nor the court’s case law requiring it to construe statutes in a way that prevents such absurd results.
Unfortunately, on July 18, 2023, the Supreme Court of Illionis denied the request for it to reconsider its decision.