Earlier this week, the Illinois Supreme Court denied a petition for rehearing of its decision in Cothron v. White Castle, a case which has tremendous implications on the effect of Illinois’s Biometric Information Privacy Act (“BIPA”). As previously covered here on PW, the Court’s decision in February concluded that that each separate incident which is a violation of BIPA constitutes a distinct and separately actionable violation of the statute. In other words, plaintiffs may seek to collect liquidated damages per violation—$1,000 per violation, $5,000 per intentional/reckless violation—instead of per plaintiff, even if a plaintiff alleges daily violations over the course of years. This week’s ruling leaves in place the Cothron decision and its exponential expansion of the scope of damages that may be sought by an individual plaintiff.

In a separate dissent accompanying the denial of the rehearing petition, Justice Overstreet (joined by the two other Justices who dissented in the February decisions) argued that the Court’s decision “threatens the survival of businesses in Illinois” and noted the many businesses who filed briefs in support of reconsidering the decision. Justice Overstreet also stated that the Court’s decision “raises significant constitutional due process concerns” for “draconian exposure [to] job-destroying liability.”

Whether or not any business takes up Justice Overstreet’s suggestion of raising a due process challenge in the face of multi-billion-dollar litigation, PW will be here to keep you in the loop on BIPA developments.  Stay tuned.