11:03 am-DONE!  That’s a wrap.  Will be interesting to see how Seventh Circuit rules and if ends up punting issue by certifying question to the Illinois Supreme Court.

11:02 am-Counsel for White Castle given one minute to respond in rebuttal.  Counsel for White Castle-this court can decide this question based on Rosenbach.  Rosenbach and West Bend both say injury occurs at the time the right to privacy vanishes and information is given up. Those choices made once.  This Court does not need to certify that question.  There will always be uncertainty as to how a state supreme court may deal with a case but that is not enough for certification.  BIPA should not be used to bankrupt employers which is what a per use, per disclosure interpretation does.

11 am-Judge Sykes-any difference under BIPA between accrual of Section 15(b) and Section 15(d) to repeat same question asked of White Castle?  Counsel for Plaintiff-said both require informed consent and look to informed consent regime in connection with conduct of either collection or dissemination.  Judge Sykes says she understands informed consent applies to both but is Section 15(d) vs Section 15(b)-whether one and done argument that White Castle is advancing applies with greater force to Section 15(d) by virtue of publication rule or otherwise.  Counsel for Plaintiff said do not see that distinction because same principles apply to collection and dissemination without informed consent.

10:58 am-Counsel for Plaintiff-Illinois Supreme Court appears to be taking active role in this area of the law.  Certification would ensure consistency, ensure finality and reason of how get to results by letting state system play it out.  Respectfully ask the court to affirm district court but alternatively ask that certify question to Illinois Supreme Court in its sound discretion.

10:53: Counsel for Plaintiff-all of rights to individuals under BIPA line up with entities’ duties under BIPA.  White Counsel’s position would chip away at their duties to comply with statute in first instance.  If went back in time to 2008 and White Castle realized it made mistake after 1 month of first unlawful collection-it could have then provided Plaintiff with proper disclosures and requested consent. She could have considered issue and stopped future collection in the future or future dissemination in the future and taken corrective measures such as asking White Castle to destroy her data.  As Miller case shows, the longer a third-party has data the greater the risk is that there is increased risk of harm or compromise such as a data breach.  White Castle could have done this in 2009, 2010, but did not decide to comply until 2018. Under White Castle’s position they had no obligations under BIPA once Plaintiff’s data collected in 2008.  In other words, no incentive to mitigate the conduct or safeguard Plaintiff’s data going forward under White Castle’s position.  This is contrary to the purposes of the act which is designed to ensure transparency, honesty and safeguards in place.  The district court got it right.  But Seventh Circuit could also decide more appropriate to be resolved by Illinois Supreme Court and requirements for certification present.  There are two Illinois Appellate cases pending and also a case that is fully briefed on somewhat related statute of limitations question.

10:50 am-Counsel for Plaintiff says law on publication doctrine and other case law from Illinois courts sparse.  This is not the collection or dissemination in and of itself that gives rise to the claims-it is that conduct without getting informed consent.  Under the plain text of the statute that informed consent is required before collection or dissemination.  Once collector like White Castle obtains informed consent, that is good for future conduct.  White Castle asking wrong question-not did collector take control of the data as that itself does not make person aggrieved, unlike for example data breach scenario.  Instead, BIPA is remedial.  So Plaintiff could not bring statutory claim simply alleging that a third party took control of her data.  Act does not prohibit action of taking control. Permits it when certain requirements met and that is the informed consent regime.  So question is did the collector fail to educate the person whose information was collected about their rights under BIPA?  If so, that person is then aggrieved under the statute.  No basis to take another step and ask other questions.

10:47 am: Judge Easterbrook-Illinois is one of states that follows publication rule where injury occurs at first publication.  Why should Seventh Circuit not predict Illinois courts wouldn’t take same position here?  Plaintiff responds that no precedent from Illinois Supreme Court here that approach would be applied to BIPA when prior caselaw applied in defamation and similar cases.  Plaintiff’s counsel just used BIPA acronym and Judge Easterbrook reminded him “we are generalists” and not as immersed in this statute as counsel for the parties are.

10:47 am-Counsel for Plaintiff says “plain text” of BIPA dictates result here-no collection without informed consent.  Collector may not first collect unless obtains consent under BIPA.  Here allegations are that White Castle collected Plaintiff’s data without compliance with BIPA and alleged that disseminated data without informed consent repeatedly over 10 year period.

10:45-Counsel for White Castle wraps up.  Plaintiff’s claim accrued, if at all, first time her data was collected in 2008 when BIPA was enacted.  Her privacy rights vanished at that point.  White Castle asks for denial of certification request to Illinois Supreme Court and reversal of district court ruling.

10:45: Judge Sykes-Says counsel for White Castle raising argument that does not work as well for Section 15(b) violation as for Section 15(d).  BIPA prohibits collection of data without prior informed consent at Section 15(b).  How deal with that?  Counsel for White Castle responds saying that section does not require collection every time collection occurs.  Here, when collection by same party of same information for years with two consents (as was this case, where plaintiff consented twice to the collection of her biometric data) cannot be separate violations for every collection.

10:42 am-Judge Easterbrook says unclear how Illinois courts would rule on this issue.  Says he is trying to find “genuine state cases” that would indicate how Illinois courts would rule in this case.

10:40 am-Judge Easterbrook asks how has Illinois Supreme Court ruled on issue of discrete wrongs and continuing wrongs and whether that additionally supports certification of question to Illinois Supreme Court in this case.  When counsel for White Castle responds citing ruling in Rosenbach, court rejects it as applying here.

10:38 am-Judge Brennan-for issue of uncertainty what is White Castle’s textual argument for when accrual occurs?  White Castle says Section 15(b) cannot collect under BIPA unless comply with consent regime.  But statute does not say consent regime must be followed each time information collected from each individual.  That is what district court did however-improperly read language into Section 15(b) that does not exist.  Statute does not concern each subsequent point in time that data collected, but singular event at first point of providing data.  Counsel for White Counsel says that Seventh Circuit decision’s in Bryant consistent with this approach.  Section 15(d) of BIPA has no requirement that consent needs to be obtained repeatedly-in holding otherwise, impermissibly added language to the statute.

10:35 am-Counsel for White Castle says that two cases pending before Illinois Appellate courts concerning accrual issue but decisions not yet close for the Illinois Supreme Court and no genuine uncertainty from White Castle’s perspective regarding law.

10:33: Question from bench-does any Illinois decision address when claim accrues?  Counsel for White Castle responds no.  Judge Easterbrook then suggests this may be appropriate case for certification to the Illinois Supreme Court which the Plaintiff here has requested.

10:30 am-White Castle-District Court’s decision changed BIPA from remedial statute into punitive one with catastrophic damages.  Looking at case law as for what injury is under BIPA and when injury occurs where the Seventh Circuit should start here.  Position from White Castle is that precedential decisions from Seventh Circuit show that claim accrues when an individual “lost control over or secrecy in biometric data before there is compliance with BIPA’s regime”

10:30 am-Judge Easterbrook asks counsel for White Castle to use “plain English words” within a moment of her starting oral argument.  Rough.

10:30 am-And here we go! Some technical issues with Judge Easterbrook’s feed are holding things up momentarily.

10:28 am-Interestingly, however, Judge Sykes and Judge Brennan both were on the panel that decided Fox v. Dakkota Integrated Sys., 2020 U.S. App. LEXIS 36148 (7th Cir. Nov. 19, 2020).

10:25 am-The panel will include Judge Sykes, Judge Easterbrook and Judge Brennan.  Should be interesting.  None of these jurists, interestingly, was on the panel that decided Bryant v. Compass Grp. USA, Inc., 20-1443

10:16 am-For those of you interested in tuning in live, you can check out the oral argument on YouTube at Court Of Appeals 7th Circuit Live Stream – YouTube.

Tune in to this page at 10:30 am EST for Kristin Bryan’s live blog of one of the biggest data privacy litigation events of the year–oral argument in Cothron v. White Castle, No. 20-3202 (7th Cir.).  The case presents the issue of [w]hether, when conduct that allegedly violates BIPA is repeated, that conduct gives rise to a single claim under Sections 15(b) and 15(d) of BIPA, or multiple claims”–with widespread implications for other cases (brought under BIPA and otherwise).

In advance of oral argument, you can check out a break down of the facts of the case and its procedural history here.