On June 16, 2020, District Judge John Tharp partially denied White Castle’s motion to dismiss in Cothron v. White Castle Sys., No. 19 CV 00382, 2020 U.S. Dist. LEXIS 104795, at *2 (N.D. Ill. June 16, 2020).  White Castle is left to litigate a former employee’s claims that the restaurant chain violated various provisions of the Illinois Biometric Information Privacy Act (“BIPA”) with its collection and sharing of her fingerprint information.

In her complaint, Plaintiff Latrina Cothron alleges that in 2007 she was required to register her fingerprint with White Castle who then transferred the fingerprint to two third-party vendors and stored the biometric information at separately owned and operated data storage facilities. In violation of BIPA sections 15(a), 15(b) and 15(d), Plaintiff also alleges that White Castle failed to obtain a written release from Plaintiff for the collection of her fingerprint, neglected to provide Plaintiff with information regarding the purpose of the collection and subsequent storage, and neglected to make its data retention policy publicly available.

White Castle launched an early attack on the claims through a motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). White Castle argued that Plaintiff waived her rights to sue when she signed a 2018 consent form and that she did not plead White Castle acted with the mental state required for statutory damages. White Castle also argued the Illinois Workers’ Compensation Act (“IWCA”) barred Plaintiff’s suit.

The court  found White Castle’s arguments unavailing. In response to White Castle’s waiver argument, the court found “[n]othing in [Plaintiff]’s complaint or in the 2018 form indicates that [Plaintiff] knew she was waiving her right to bring suit against White Castle for past violations of BIPA.” As for the state of mind argument, the court held the allegations stated a plausible claim for relief and explained that Rule 12(b)(6) “does not require her to plead the facts that will determine the amount of actual damages she may be entitled to recover.” In dismissing the IWCA argument, the court observed that various courts have “unanimously rejected” White Castles argument, “and for good reason.”

It wasn’t all bad news for White Castle. It did succeed in convincing the court to  grant its motion to dismiss Plaintiff’s claims based on alleged violations of Section 15(a) . Section 15(a) requires, among other things, the permanent destruction of the “initial purpose for collecting or obtaining” biometric data or “within 3 years” of the entity’s last interaction with the individual, whichever comes first. Due to Plaintiff’s continued employment at White Castle and the purpose of her fingerprint’s collection remaining in effect (i.e., facilitating management and access to paystubs), neither of Section 15(a)’s conditions requiring destruction of biometric data was met.