Latrina Cothron v. White Castle System, Inc. ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3202
LATRINA COTHRON, individually and on
behalf of all others similarly situated,
Plaintiff-Appellee,
v.
WHITE CASTLE SYSTEM, INC.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19 CV 00382 — John J. Tharp, Jr., Judge.
____________________
ARGUED SEPTEMBER 14, 2021 — DECIDED DECEMBER 20, 2021
____________________
Before SYKES, Chief Judge, and EASTERBROOK and
BRENNAN, Circuit Judges.
SYKES, Chief Judge. Latrina Cothron works as a manager at
an Illinois White Castle hamburger restaurant where she
must scan her fingerprint to access the restaurant’s computer
system. With each scan her fingerprint is collected and
transmitted to a third-party vendor for authentication.
Cothron alleges that White Castle did not obtain her written
2 No. 20-3202
consent before implementing the fingerprint-scanning
system, violating the Illinois Biometric Information Privacy
Act. She brought this proposed class-action lawsuit on
behalf of all Illinois White Castle employees.
White Castle moved for judgment on the pleadings based
on the statute of limitations. The restaurant argued that a
claim accrued under the Act the first time Cothron scanned
her fingerprint into the system after the law took effect in
2008. That was more than a decade before she sued, making
her suit untimely under the longest possible limitations
period. Cothron responded that every unauthorized finger-
print scan amounted to a separate violation of the statute, so
a new claim accrued with each scan. That would make her
suit timely for the scans within the limitations period.
The district judge rejected White Castle’s “one time only”
theory of claim accrual and denied the motion. But he found
the question close enough to warrant an interlocutory appeal
under 28 U.S.C. § 1292(b). Cothron now asks us to certify the
question to the Illinois Supreme Court.
We agree that this issue is best decided by the Illinois
Supreme Court. Whether a claim accrues only once or
repeatedly is an important and recurring question of Illinois
law implicating state accrual principles as applied to this
novel state statute. It requires authoritative guidance that
only the state’s highest court can provide.
I. Background
Cothron has worked for White Castle since 2004. She al-
leges that not long after she began, White Castle introduced
a system that requires its employees to scan their finger-
prints to access pay stubs and work computers. Each scan is
No. 20-3202 3
sent to a third-party vendor that authenticates it and gives
her access to the restaurant’s computer system. Cothron
contends that White Castle implemented this system with-
out properly obtaining her consent in violation of the Illinois
Biometric Information Privacy Act (“BIPA” or “the Act”),
740 ILL. COMP. STAT. 14/1 et seq.
The Illinois General Assembly adopted the Act in 2008 in
response to increased commercial use of biometric data.
Biometrics are “biologically unique” personal identifiers, id.§ 14/5(c), and include iris scans, face geometry, and, relevant
here, fingerprints, id. § 14/10. Unlike other sensitive personal
information, like social security numbers, once compromised
biometrics cannot be changed. § 14/5(c). The legislative
findings note growing concern among members of the
public about the use and collection of biometrics. See id.
§ 14/5(d)–(e).
To address these concerns, the Act regulates how private
entities may collect and handle biometric data and provides
a private cause of action for any person “aggrieved by” a
violation of the statute. Id. § 14/20. A plaintiff can recover the
greater of actual damages or statutory damages of $1,000 for
each negligent violation and $5,000 for each reckless or
willful violation. Id.
Two of the Act’s provisions are relevant here. Sec-
tion 15(b) provides that a private entity may not “collect,
capture, purchase, receive through trade, or otherwise
obtain” a person’s biometric data without first providing
notice to and receiving consent from the person. Id.
§ 14/15(b). Section 15(d) provides that a private entity may
not “disclose, redisclose, or otherwise disseminate” bio-
metric data without consent. Id. § 14/15(d).
4 No. 20-3202
Cothron alleges that White Castle did not attempt to ob-
tain her consent until 2018—a decade after the Act took
effect—and therefore unlawfully collected her fingerprints
and unlawfully disclosed them to its third-party vendor in
violation of sections 15(b) and 15(d), respectively. She sued
White Castle and Cross Match Technologies, Inc., the third-
party vendor, in Illinois state court seeking to represent
White Castle employees whose rights were violated. Cross
Match removed the case to federal court under the Class
Action Fairness Act of 2005. See 28 U.S.C. §§ 1332(d), 1453.
(Cothron later voluntarily dismissed Cross Match from the
suit, so we mention it no further.)
The district judge sua sponte addressed subject-matter
jurisdiction, examining whether Cothron alleged a concrete
and particularized injury as required for Article III standing.
Cothron v. White Castle Sys., Inc., 467 F. Supp. 3d 604 (N.D. Ill.
2020). Based on our reasoning in Bryant v. Compass Group
USA, Inc., 958 F.3d 617 (7th Cir. 2020), the judge determined
that jurisdiction is secure. Cothron, 467 F. Supp. 3d at 611–13.
White Castle then moved for judgment on the pleadings,
see FED. R. CIV. P. 12(c), arguing that the suit is untimely. (The
duration of the limitations period is disputed, but all agree
that it is no longer than five years.) White Castle maintained
that Cothron filed suit too late because her claim accrued in
2008 with her first fingerprint scan after the Act’s effective
date. Cothron countered that a new claim accrued each time
she scanned her fingerprint and White Castle sent it to the
third-party authenticator—not just the first time—so her suit
is timely with respect to the unlawful scans and transmis-
sions that occurred within the limitations period.
No. 20-3202 5
The judge agreed with Cothron and denied White
Castle’s motion. Cothron v. White Castle Sys., Inc., 477 F. Supp.
3d 723, 734 (N.D. Ill. 2020). Because the decision involved a
controlling question of law on which there is substantial
ground for disagreement, the judge certified his order for
immediate appeal, see § 1292(b), and we accepted the certifi-
cation. Cothron in turn asks us to certify the question to the
Illinois Supreme Court.
II. Discussion
Though no one challenges the judge’s jurisdictional rul-
ing, “[s]ubject-matter jurisdiction is the first issue in any
case,” Miller v. Sw. Airlines Co., 926 F.3d 898, 902 (7th Cir.
2019), so we begin with our “independent duty to ensure”
that this case is properly in federal court, Dexia Crédit Loc. v.
Rogan, 602 F.3d 879, 883 (7th Cir. 2010). After confirming
Cothron’s standing, we turn to the controlling legal ques-
tion—whether section 15(b) and 15(d) claims accrue just
once or repeatedly—as well as Cothron’s request to certify
the question to the Illinois Supreme Court.
A. Article III Standing and Section 15(d)
Article III of the Constitution limits the jurisdictional
reach of the federal courts to “Cases” and “Controversies.”
U.S. CONST. art. III, § 2. Essential to this limitation is the
requirement that a plaintiff have standing to sue in federal
court. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006).
At the pleading stage, standing requires allegations of a
concrete and particularized injury in fact that is traceable to
the defendant’s conduct and redressable by judicial relief.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Bryant,
958 F.3d at 620–21.
6 No. 20-3202
Our decision in Bryant resolved the standing question for
claims under section 15(b) of the Act, see 958 F.3d at 624, but
we have yet to decide whether a violation of section 15(d)
inflicts a concrete and particularized Article III injury. We do
so here.
Concrete injuries encompass harms that are “real, and
not abstract.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)
(quotation marks omitted). Tangible harms like physical and
monetary injuries are the most obvious, but certain intangi-
ble harms, most particularly those closely related to harms
“traditionally recognized as providing a basis for lawsuits in
American courts,” also qualify. TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2204 (2021); see also Spokeo, 578 U.S. at 340–41.
These include, for example, “reputational harms, disclosure
of private information, and intrusion upon seclusion.”
TransUnion, 141 S. Ct. at 2204.
Particularized injuries are those that “affect the plaintiff
in a personal and individual way.” Lujan, 504 U.S. at 560 n.1.
They must be distinguished from “generalized grievances”
that affect the public generally and for which an individual
cannot seek relief in federal court. DaimlerChrysler, 547 U.S.
at 348.
Our application of these principles to section 15(d) is
streamlined by the reasoning in Bryant and related circuit
precedent regarding other sections of the Act. In Bryant we
addressed whether the collection of biometric data without
complying with section 15(b)’s informed-consent procedures
inflicts an Article III injury. 958 F.3d at 620. We noted that the
informed-consent duties prescribed by section 15(b) protect
a person’s privacy interests in his unique biometric data, so a
noncompliant collection of biometric data amounts to an
No. 20-3202 7
invasion of an individual’s “private domain, much like an act
of trespass.” Id. at 624.
We explained that the duties imposed by section 15(b)
reflect the General Assembly’s judgment that people must
have “the opportunity to make informed choices about to
whom and for what purpose they will relinquish control”
over their biometric data. Id. at 626. Failure to comply with
these requirements deprives a person of “the opportunity to
consider whether the terms of … collection and usage [are]
acceptable given the attendant risks.” Id. That deprivation,
we held, is a concrete and particularized harm, so a violation
of section 15(b) inflicts an Article III injury. Id.
In Fox v. Dakkota Integrated Systems, LLC, 980 F.3d 1146(7th Cir. 2020), we extended Bryant’s reasoning to a provision
in section 15(a) of the Act, 740 ILL. COMP. STAT. 14/15(a). The
relevant provision conditions the retention of biometric data
on compliance with the purposes of its collection as set out
in a data-retention schedule. Fox, 980 F.3d at 1154–55. We
explained that the duty to comply with a data-retention
schedule protects a person’s biometric privacy just as surely
as section 15(b)’s informed-consent requirements. See id. at
1155. We thus concluded that the unlawful retention of
biometric data, just like its unlawful collection, works a
concrete and particularized Article III injury. Id.
The same reasoning applies to section 15(d), which pro-
hibits the disclosure, redisclosure, or dissemination of a
person’s biometric data without consent, an act that invades
his private domain just as surely as an unconsented collec-
tion or retention does. Section 15(d) is therefore unlike other
sections of the Act that impose duties owed only to the
public generally—the violation of which does not, without
8 No. 20-3202
more, confer standing. See, e.g., Thornley v. Clearview AI, Inc.,
984 F.3d 1241, 1247 (7th Cir. 2021) (holding that a violation of
section 15(c)’s general prohibition on the sale of biometric
data does not inflict an Article III injury); Bryant, 958 F.3d at
626 (holding that a violation of section 15(a)’s duty to pro-
vide a data-retention schedule to the public does not inflict
an Article III injury). And just as with section 15(b), the
failure to obtain consent for a disclosure or dissemination
deprives a person of the opportunity to consider who may
possess his biometric data and under what circumstances,
“given the attendant risks.” Bryant, 958 F.3d at 626. It follows
that a violation of section 15(d) inflicts a concrete and partic-
ularized Article III injury. Cothron’s suit is properly in
federal court.
B. BIPA Claim Accrual
The timeliness of the suit depends on whether a claim
under the Act accrued each time Cothron scanned her
fingerprint to access a work computer or just the first time.
Cothron maintains that each scan amounted to a distinct and
separately actionable section 15(b) violation and that each
transmission of her fingerprint likewise amounted to a
distinct and separately actionable section 15(d) violation.
White Castle says only the first scan and transmission matter
for accrual purposes.
The disagreement, framed differently, is whether the Act
should be treated like a junk-fax statute for which a claim
accrues for each unsolicited fax, Reliable Money Ord., Inc. v.
McKnight Sales Co., 704 F.3d 489, 491 (7th Cir. 2013), or
instead like certain privacy and reputational torts that accrue
only at the initial publication of defamatory material, Pippen
v. NBCUniversal Media, LLC, 734 F.3d 610, 614–15 (7th Cir.
No. 20-3202 9
2013). In the district court, the judge sided with Cothron and
denied White Castle’s motion for judgment on the pleadings.
We review that ruling de novo. Moss v. Martin, 473 F.3d 694,
698 (7th Cir. 2007).
1. Illinois Claim-Accrual Principles
This appeal requires us to apply Illinois claim-accrual
principles to this unique statute. As a general matter, the
Illinois Supreme Court has explained that a claim accrues
and “a limitations period begins to run when facts exist that
authorize one party to maintain an action against another.”
Feltmeier v. Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003); see also
Khan v. Deutsche Bank AG, 978 N.E.2d 1020, 1028 (Ill. 2012)
(“A cause of action ‘accrues’ when facts exist that authorize
the bringing of a cause of action.”).
The elements of the statutory cause of action are found in
sections 15 and 20 of the Act. Again, as relevant here, sec-
tion 15(b) makes it unlawful to “collect, capture, purchase,
receive through trade, or otherwise obtain” a person’s bio-
metric data without his written consent. And section 15(d)
makes it unlawful to “disclose, redisclose, or otherwise
disseminate” biometric data without the subject’s consent.
Section 20 sets out the private cause of action, authorizing
“[a]ny person aggrieved by a violation” of the Act to sue and
“recover for each violation.”
The key inquiry for claim-accrual purposes is identifying
when these statutory elements were satisfied, thus authoriz-
ing suit. See Khan, 978 N.E.2d at 1028. More to the point here,
we must determine whether suit was authorized on only one
occasion or instead repeatedly.
10 No. 20-3202
2. The Parties’ Arguments
Cothron contends that the plain language of section 15(b)
points to only one conclusion: each unlawful “collection” of
her fingerprint is a separate violation. She further argues
that the language of section 15(d) is similarly plain and
means that each unlawful “disclosure” or “dissemination” is
a separate violation. Finally, she maintains that she was
“aggrieved” afresh with each statutory violation. For sup-
port she relies on the Illinois Supreme Court’s decision in
Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197,
1206 (Ill. 2019), which explained that a violation of section 15
itself “aggrieves” a plaintiff within the meaning of sec-
tion 20. Putting these pieces together, Cothron argues that
she has a claim for each fingerprint scan within the limita-
tions period.
White Castle argues that the answer to the accrual ques-
tion is not quite so straightforward, offering two reasons for
its proposed one-time-only rule. First, White Castle invokes
a special accrual principle applicable in cases involving
defamation and other privacy torts: the single-publication
rule. Second, the restaurant argues that the Illinois Supreme
Court’s reasoning in Rosenbach actually points to the oppo-
site conclusion: that a plaintiff is “aggrieved” only by the
initial violations of sections 15(b) and 15(d).
Under the single-publication rule, a tort claim based on a
defamatory statement contained in a widely circulated
publication accrues only upon initial publication, not with
each subsequent publication of the same statement. See
Ciolino v. Simon, No. 126024, 2021 WL 1031371, at *6 (Ill.
Mar. 18, 2021); see also Founding Church of Scientology of Wash.,
D.C. v. Am. Med. Ass’n, 377 N.E.2d 158, 160 (Ill. App. Ct.
No. 20-3202 11
1978) (“[T]he cause of action for libel is complete at the time
of the first publication, and any subsequent appearances or
distributions of copies of the original publication are of no
consequence to the creation or existence of a cause of ac-
tion … .”). The purpose and effect of this rule is to “protect[]
speakers and writers from repeated litigation arising from a
single, but mass-produced, defamatory publication.” Pippen,
734 F.3d at 615.
Though originally adopted judicially in Illinois, see
Winrod v. Time, Inc., 78 N.E.2d 708, 714 (Ill. App. Ct. 1948),
the single-publication rule is now codified in the Uniform
Single Publication Act, which Illinois has adopted. The
statute provides in relevant part:
No person shall have more than one cause of
action for damages for libel or slander or inva-
sion of privacy or any other tort founded upon
any single publication or exhibition or utter-
ance, such as any one edition of a newspaper
or book or magazine or any one presentation to
an audience or any one broadcast over radio or
television or any one exhibition of a motion
picture.
740 ILL. COMP. STAT. 165/1.
White Castle argues that an unlawful disclosure of a per-
son’s biometric data is a privacy-invading “publication” to
which the single-publication rule should apply, drawing on
the reasoning in the Illinois Supreme Court’s decision in
West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan,
Inc., No. 125978, 2021 WL 2005464 (Ill. May 20, 2021). There
the court held that a disclosure of a fingerprint scan in
12 No. 20-3202
violation of the Act was a “publication” within the meaning
of a commercial insurance policy. Id. at *7. If White Castle is
right, Cothron’s section 15(d) claim is untimely.
As Cothron points out, however, there are reasons to
doubt the application of the single-publication rule in this
context. By its terms the Uniform Single Publication Act
covers defamation and other traditional privacy torts, and its
illustrative list of publication media—newspapers, books,
movies, and television and radio broadcasts—suggests that
it may not be a comfortable fit with the Act. Nor is West Bend
Mutual the slam dunk that White Castle thinks it is. That
case concerned whether a section 15(d) disclosure was a
publication within the meaning of an insurance contract, not
within the meaning of the Uniform Single Publication Act.
Id. at *6.
Even if the single-publication rule does not apply, the
language of section 15(d) is arguably consistent with White
Castle’s proposed first-time-only accrual rule. The ordinary
meaning of “disclose” connotes a new revelation. Disclose,
BLACK’S LAW DICTIONARY (11th ed. 2019) (“To make (some-
thing) known or public; to show (something) after a period
of inaccessibility or of being unknown; to reveal.”). Repeated
transmissions of the same biometric identifier to the same
third party are not new revelations. White Castle argues, not
unreasonably, that an actionable disclosure occurred only
the first time Cothron’s fingerprint was transmitted.
Cothron counters that the Act’s ban on “redisclos[ure]” of
biometric data forecloses White Castle’s proposed accrual
rule. She reads the term “redisclose” as used in section 15(d)
to include repeated disclosures of the same biometric data to
the same third party. For its part, White Castle offers a
No. 20-3202 13
different interpretation of the term: a downstream disclosure
carried out by a third party to whom information was
originally disclosed. That reading is consistent with the term
“redisclose” as used in other Illinois statutes. 1 Countering
again, Cothron argues that this usage would make “redis-
close” meaningless surplusage. Section 15(d) applies to any
“private entity in possession of a biometric identifier or
biometric information.” As such, a violation by a down-
stream entity can just be called a “disclosure,” making
“redisclose” redundant under White Castle’s reading. Maybe
so; or maybe “redisclose” serves to make certain that down-
stream entities are subject to section 15(d). See Reid Hosp. &
Health Care Servs., Inc. v. Conifer Revenue Cycle Sols., LLC, 8
F.4th 642, 652 (7th Cir. 2021) (noting the tension between the
anti-surplusage canon and the belt-and-suspenders drafting
approach).
Finally, the catchall language in section 15(d)—recall that
the statute makes it unlawful to “disclose, redisclose, or
otherwise disseminate” a person’s biometric identifier—does
not clearly preclude a single-time accrual rule. The phrase
following the terms “disclose” and “redisclose” may simply
be a way to ensure that all disclosure-like acts are covered.
1 See, e.g., 740 ILL. COMP. STAT. 110/5(d) (“No person or agency to whom
any information is disclosed under this [s]ection may redisclose such
information unless the person who consented to the disclosure specifical-
ly consents to such redisclosure.”); id. § 110/9 (“A person to whom
disclosure is made under this [s]ection shall not redisclose any infor-
mation except as provided in this Act.”); 20 ILL. COMP. STAT. 505/35.3(b)
(“A person to whom disclosure of a foster parent’s name, address, or
telephone number is made under this [s]ection shall not redisclose that
information except as provided in this Act or the Juvenile Court Act of
1987.”).
14 No. 20-3202
See People v. Davis, 766 N.E.2d 641, 645 (Ill. 2002) (“[W]hen a
statutory clause specifically describes several classes of
persons or things and then includes ‘other persons or
things,’ the word ‘other’ is interpreted as meaning ‘other
such like.’”). The upshot is that although section 15(d) does
not clearly say that a claim accrues only once, that is a
plausible reading of the statutory language.
White Castle’s second argument is based on the Illinois
Supreme Court’s reasoning in Rosenbach, which concerned
section 15(b) of the Act. There, a Six Flags amusement park
collected a patron’s fingerprint to facilitate his entry to the
park as a season pass holder. Rosenbach, 129 N.E.3d at 1200.
He sued for the unlawful collection of his biometric data in
violation of section 15(b). Id. at 1201. The question was
whether the alleged statutory violation by itself “aggrieved”
the plaintiff within the meaning of section 20, giving him the
right to sue. Id. at 1202.
To answer the question, the Illinois Supreme Court ex-
plained that the Act generally protects a person’s “right to
privacy in and control over” his biometric data and that the
provisions in section 15 define the contours of that right. Id.
at 1206. It follows, the court held, that a violation of one of
those provisions aggrieves a plaintiff within the meaning of
section 20. Id. The court was clear that “[n]o additional
consequences need be pleaded or proved.” Id. Accordingly, a
plaintiff can sue without “show[ing] some injury beyond [a]
violation of [his] statutory rights.” Id. at 1207.
Rosenbach’s expansive language can be read to favor
Cothron’s position. A section 15 violation, without more,
aggrieves a plaintiff within the meaning of section 20. And it
No. 20-3202 15
may follow that an “aggrievement” occurs at each violation,
with a claim accruing each time as well.
At bottom, however, the issue in Rosenbach was not claim
accrual, let alone the repeated accrual issue we consider
here. Seizing this opening, White Castle focuses on
Rosenbach’s reasoning, with special emphasis on the court’s
explanation that the Act protects a person’s right of “privacy
in and control over” his biometric data. White Castle theo-
rizes that this right is fully invaded by an initial violation of
section 15(b) or 15(d) and that repeated violations by the
same person do no further harm to the person’s privacy or
control rights.
White Castle’s one-and-done theory makes sense if we
accept that subsequent collections or disclosures of biometric
data do not work a harm that the Act seeks to prevent. And
more importantly, focusing on what it means to be “ag-
grieved” by a violation of the statute gives this theory a
plausible hook in the statutory text. But the theory also has
some notable weak spots. The premise—two violations
aren’t worse than one—may simply be wrong. Repeated
collections or disclosures of biometric data, even if by or to
the same entity, might increase the risk of misuse or mishan-
dling of biometric data. If so, each violation would seem to
independently aggrieve a plaintiff. And the theory is hard to
square with the broad language in Rosenbach that “[n]o
additional consequences need be pleaded or proved” other
than a violation of the plaintiff’s statutory rights. Id. at 1206.
Beyond their arguments from text and precedent, both
Cothron and White Castle maintain that the other’s position
would produce untenable consequences that the General
Assembly could not possibly have intended. See People v.
16 No. 20-3202
Collins, 824 N.E.2d 262, 266 (Ill. 2005) (“[I]n construing a
statute, we presume that the legislature did not intend an
absurd result.”). White Castle reminds us that the Act pro-
vides for statutory damages of $1,000 or $5,000 for “each
violation” of the statute. § 14/20. Because White Castle’s
employees scan their fingerprints frequently, perhaps even
multiple times per shift, Cothron’s interpretation could yield
staggering damages awards in this case and others like it. If
a new claim accrues with each scan, as Cothron argues,
violators face potentially crippling financial liability.
Cothron responds that the calculation of damages is sep-
arate from the question of claim accrual. True, but she does
not explain how alternative theories of calculating damages
might be reconciled with the text of section 20. Her better
point is that White Castle’s first-time-only reading would
itself lead to an odd result. Once a private entity has violated
the Act, it would have little incentive to course correct and
comply if subsequent violations carry no legal consequences.
All told, the practical implications of either side’s interpreta-
tion, to the extent that Illinois courts would weigh them, do
not decisively tilt one way or the other.
C. Certification
In light of the novelty and uncertainty of the claim-
accrual question, Cothron asks us to certify it to the Illinois
Supreme Court. Our rules permit us to certify state-law
questions to a state supreme court when the answer will
control the outcome of a case and the state court accepts
such certifications. 7TH CIR. R. 52(a). The Illinois Supreme
Court accepts certified questions from this court when none
of its precedents control and the answer to the certified
question will determine the outcome of the case. ILL. S. CT.
No. 20-3202 17
R. 20(a). Those threshold requirements are met here. The
Illinois Supreme Court has not yet decided whether sec-
tion 15(b) and 15(d) claims accrue repeatedly. If they do,
Cothron’s action can continue; otherwise, it fails.
These are necessary but not sufficient conditions for certi-
fication. We are mindful of our obligation not to burden a
state’s highest court with unwarranted certification requests,
so additional factors weigh in the balance. See State Farm
Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 671 (7th Cir. 2001).
First and foremost, we must find ourselves “genuinely
uncertain” about the answer to the state-law question before
considering certification. In re Hernandez, 918 F.3d 563, 570
(7th Cir. 2019). That criterion is satisfied here. As discussed,
there are reasons to think that the Illinois Supreme Court
might side with either Cothron or White Castle. A wrong
answer may also transcend the Act and implicate fundamen-
tal Illinois accrual principles on which only the state’s high-
est court can provide authoritative guidance. 2
2 Just a few days ago, the First District of the Illinois Appellate Court
decided Watson v. Legacy Healthcare Financial Services, LLC, No. 1-21-0279,
2021 WL 5917935 (Ill. App. Ct. Dec. 15, 2021). There the court held that a
section 15(b) claim accrues with “each and every capture and use of [a]
plaintiff’s fingerprint or hand scan.” Id. at *5. Generally speaking,
certification to a state supreme court is not appropriate when the state’s
intermediate appellate courts have addressed the question and agree on
the answer. See Liberty Mut. Fire Ins. Co. v. Statewide Ins. Co., 352 F.3d
1098, 1100 (7th Cir. 2003) (declining to certify a question to the Illinois
Supreme Court because the “Illinois appellate courts have spoken, and
they are not in conflict”). The recent decision in Watson does not weigh
against certification. It is the only appellate decision to address the
repeated accrual of claims under the Act, and it did not address sec-
tion 15(d), which we consider alongside section 15(b) here. Furthermore,
as we explain, the issue of claim accrual under the Act is a close, recur-
18 No. 20-3202
It’s also important that the dispositive legal question is
general and likely to recur rather than unique and fact
bound. Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1085
(7th Cir. 2016). The question here is a purely legal one that
has already shown itself to frequently arise. It drew signifi-
cant interest from amici on both sides. Several federal district
courts have recently stayed their proceedings awaiting our
judgment in this case. E.g., Callender v. Quality Packaging
Specialists Int’l, LLC, No. 21-cv-505-SMY, 2021 WL 4169967, at
*2 (S.D. Ill. Aug. 27, 2021); Johns v. Paycor, Inc., No. 20-cv-
00264-DWD, 2021 WL 2627974, at *2 (S.D. Ill. May 11, 2021).
Finally, it matters that the Act is a unique Illinois statute
regularly applied by the federal courts, see Nagy v. Riblet
Prods. Corp., 79 F.3d 572, 577 (7th Cir. 1996), and one that the
Illinois Supreme Court has shown an interest in interpreting,
see Stephan v. Rocky Mountain Chocolate Factory, Inc., 129 F.3d
414, 418 (7th Cir. 1997). In addition to deciding Rosenbach in
2019 and West Bend Mutual in 2021, the court recently ac-
cepted review of McDonald v. Symphony Bronzeville Park, LLC,
163 N.E.3d 746 (Table) (Ill. 2021), which asks whether the
state’s Workers’ Compensation Act precludes an employee’s
claims for statutory damages under the Act.
Accordingly, the relevant criteria favor certification. We
therefore respectfully ask the Illinois Supreme Court, in its
discretion, to answer the following certified question:
ring, and hotly disputed question of great legal and practical conse-
quence that requires authoritative guidance from the Illinois Supreme
Court.
No. 20-3202 19
Do section 15(b) and 15(d) claims accrue each
time a private entity scans a person’s biometric
identifier and each time a private entity trans-
mits such a scan to a third party, respectively,
or only upon the first scan and first transmis-
sion?
Nothing in this certification should be read to limit the scope
of the Illinois Supreme Court’s inquiry, and the justices are
invited to reformulate the certified question. Further pro-
ceedings in this court are stayed while this matter is under
consideration by the Illinois Supreme Court.
QUESTION CERTIFIED