Last week, an Illinois federal district court granted the defendant’s motion to stay in Stegmann v. PetSmart, No. 1:22-cv-01179 (N.D. Ill.).  The case implicates the evolving law surrounding the scope of the Illinois Biometric Information Privacy Act (“BIPA”) and  a pending Illinois Supreme Court case that could provide an important defense to certain BIPA suits.

The PetSmart plaintiff filed a class action complaint against his former employer based on alleged violations of sections 15(a) and 15(b) of the Illinois Biometric Information Privacy Act (“BIPA”).  Specifically, he contends that the defendant used a technology that repeatedly collected his—and other employees’—“voiceprints.”  The defendant moved to dismiss on a number of grounds, including that the plaintiff failed to plausibly allege that the data collected constituted a “voiceprint.”  It simultaneously moved to stay the case pending the outcome of a separate case currently before the Illinois Supreme Court, Cothron v. White Castle System, Inc., No. 128004 (Ill.).  The defendant argued that a forthcoming decision in that case could render the plaintiff’s claims time-barred.  

In issuing its stay order, the PetSmart court agreed with the defendant that the decision in Cothron could be “outcome determinative” in PetSmart.  The Cothron court is poised to decide whether claims accrue under Section 15(b) of BIPA “each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission.”  Cothron v. White Castle System, Inc., 20 F.4th 1156, 1167 (7th Cir. 2021) (certifying the question).  A five-year statute of limitations governs claims brought under BIPA sections 15(a) and 15(b).  Therefore, the PetSmart plaintiff—whose employment began in December 2014, over seven years before he filed suit in January 2022—could see his claims time-barred if Cothron determines that claims only accrue upon “the first scan and first transmission.”

The outcome in Cothron may have important implications for the application of the statute of limitations governing claims under BIPA sections 15(a) and 15(b).  Most significantly, if BIPA claims accrue only “upon the first scan and first transmission” and not each subsequent time a biometric identifier is scanned and transmitted, the statute of limitations may elapse earlier and provide an important defense in fact patterns similar to that at issue in PetSmart.

This case presents yet another example of the evolving nature of the law surrounding BIPA’s scope, other examples of which have been addressed in some of our previous posts.

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Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.

Photo of Dominic Booth Dominic Booth

Dominic Booth is an associate in the firm’s Palo Alto office who focuses on commercial litigation and complex class actions. He has experience working with clients in the technology and financial services industries in matters involving privacy, consumer protection, product liability, and breach…

Dominic Booth is an associate in the firm’s Palo Alto office who focuses on commercial litigation and complex class actions. He has experience working with clients in the technology and financial services industries in matters involving privacy, consumer protection, product liability, and breach of contract claims. In particular, Dominic has experience litigating cases brought under the Federal Wiretap Act, California Invasion of Privacy Act (CIPA), and Video Privacy Protection Act (VPPA).