Goldberg Kohn Principal David E. Morrison is quoted in "White Castle Ruling Shakes Up Biometric Litigation, Insurance," an article published in the Feb. 22, 2023, edition of Bloomberg Law.
The article concerns the Illinois Supreme Court's split decision in Cothron v. White Castle, in which the court found that damages claims made under the Illinois Biometric Information Privacy Act accrue on each violation, not just the first. The ruling expands the potential for huge damages awards under the state’s biometric privacy law, opens up new legal strategies and creates a fresh headache for insurance providers.
It could leave businesses on the line for hundreds of millions of dollars if they are found liable for violating the law with their employment and consumer practices. And it may intensify biometric privacy case battling at procedural stages like class certification.
The decision comes weeks after the Illinois high court held that the biometric privacy law is subject to a five-year statute of limitations in Tims v. Black Horse Carriers.
In the article, David Morrison says that the manner in which BIPA damages are approached by trial courts could now vary by jurisdiction. The court found that statutory damages for violations of the law are discretionary, not mandatory, because “there is no language in the Act suggesting legislative intent to authorize a damages award that would result in the financial destruction of a business.”
That leaves the potentially enormous damages awards up to an array of courts to calculate.
“We could start seeing all different types of decisions coming from different circuits in the state, federal court or state court, and different facts on the ground that compel different courts to reach different conclusions as to what a fair, to both the plaintiff and the defendant, damage calculation should be,” Mr. Morrison said.
Mr. Morrison has closely followed the wave of class-action lawsuits under the Illinois Biometric Information Privacy Act and the challenges they present to Illinois companies. In addition to his alert, "Illinois Supreme Court's Latest Ruling on the Biometric Information Privacy Act Will Send Shock Waves Through The Illinois Business Community," he recently wrote "Illinois Supreme Court Further Expands the Scope of the Biometric Information Privacy Act."