There has been a lot of news about the Biometric Information Privacy Act (BIPA) of Illinois and Stephan Zouras’s part in advocating for the statute. Our co-founder, Jim Zouras, was recently interviewed by Max Barack and Amit Bindra for their podcast Employee to Lawyer. In the interview, Jim explains the cases that Stephan Zouras recently received favorable rulings in and what it means for employees, consumers, and workers in Illinois.
You can read the full interview transcribed below or listen to the podcast here.
Welcome to Employee to Lawyer, the employment law podcast presented by NELA Illinois. The podcast that discusses the policies, regulations, and law that affect our workplaces. Presented primarily from the perspective of employee or plaintiff-side lawyers, we are your hosts – Amit Bindra and Max Barack. We are members of the board of directors for NELA Illinois – the Illinois chapter of the National Employment Lawyers Association, a nonprofit collection of attorneys who empower workplace rights.
Welcome back to Employee to Lawyer, the employment law podcast presented by NELA Illinois. We are your hosts. I am Amit Bidra and I am Max Barack and we are extremely lucky to today, on very short notice on a Sunday morning, have one of our best former guests come on to discuss some major wins that his firm has recently registered on behalf of all, I guess, let’s call it consumers and employees in Illinois or workers who might have had their biometric identifiers collected or improperly disseminated as part of their work. Mr. Jim Zouras. Welcome back.
Jim Zouras: Well, the pleasure is all mine. Thank you for having me on again.
Max Barack: So, Jim is back because a couple of cases that he recently argued at the state supreme court have come down on decisions on BIPA, the Illinois Biometric Information Privacy Act and we’re here to talk about one of them in particular and, if time permits, two, the Cothron v. White Castle System Inc decision. Jim, you got a nice win this week.
JZ: We did. We’re very gratified by that. We argued this case back in May 2022 so we’ve been anxiously awaiting it and it came out on Friday of last week and we think it is a well-reasoned opinion. Perfectly consistent with the statutory text. And, more importantly, perhaps, perfectly consistent with what we have said all along, is that number 1, the reason behind the law and how it is to be applied in practice.
MB: Well, give us a really brief rundown. What was this case about.
JZ: Well, simply, this case was about how claims accrue and what triggers accrual under the Illinois Biometric Information Privacy Act. What conduct or what failures trigger the ability to bring a lawsuit and so put simply, BIPA is an informed consent statute before collecting, storing, using, disseminating, trading, or sharing with biometric data. You have to get informed consent from the subject of the collection. In this case, it was an employee, our client, Latrina Cothron, who was a year veteran employee of White Castle. So, the issue was what triggering events would allow that person who’s rights have been violated, to bring a lawsuit for redress under the statute. White Castle’s position was that only the first time they broke the law. Only the first time the collect, for example, Ms. Cothron’s biometric without consent, which in this case was the day after the statue was enacted in 2008. That that would be the only trigger that would cause her rights to accrue, claims to accrue. Well, we said, no because your broke the law every day, not just with Ms. Cothron, of course, but with respect to all employees day after day, not for a few weeks, not for a few months, but decades. Thousands of employees, breaking this simple and straightforward statue. We said, ‘Well, it’s the last time you take biometric data, store it, disseminate it without informed consent, that is the last time that a claim would accrue. The court agreed with us and we are gratified with the decision. It is a logical and straightforward reading of the plain text. The court, wisely, was not distracted by some of the hysterical, fear mongering nonsense. I think we counted 90 pages of briefings between White Castle and its amici on issues which were not before the courts. They were not distracted by that smoke screen and hopefully no one would be distracted by any of that nonsense which we continue to see that it isn’t working. It’s destroying credibility. It really hurt their credibility at the court, I believe. It’s not helping their cause right now to tell the world that they are now responsible for, it is to calculate, $17.1 billion in damages. They told that to the court. The court didn’t buy it. They’re telling that to the world now. I don’t think it is helping their cause. That is my humble opinion. I don’t represent White Castle. I don’t advise them. If I was responsible for that, I would strongly consider telling the to take it down a notch. It really isn’t working.
MB: So, just to clarify, Jim. That defense, I think we can agree was pretty hyperbolic in the realm of the parade of horrible arguments you hear about in law school, was that every single time somebody clocks in and clocks out on that device, every single one of those is a one to $5,000 violation and that every company in the world that has ever used a biometric time clock or some other device that collects, would just lead to one of these lottery ticket damage awards. Right?
JZ: Right. And that’s just nonsense. We know it’s nonsense because the only folks calculating damages in this manner, and who have calculated damages in this manner, are defense lawyers defending BIPA cases and representing BIPA violators. In other words, no plaintiff, not us, not any other plaintiff to our knowledge, no court, other than the defendants themselves, calculate damages in the outrageous manner that we have no discussed. The non-text, non-statutory based manner that they are suggesting and the one that was not before the court anyway, but certainly that the court didn’t think the threats of this was not a reason to ignore the plain text. Again, it’s not helping their cause, in my opinion.
AB: In essence, this decision is a very simple definition of basic grammar, which happens a lot in court cases about statutes. But the implications are on the statute of limitations, right? That would be one, like you said before. The last day the action happens, that’s when the statute of limitations would start running again. Two, what are your thoughts then on the implications on the damages based on this. How should they be calculated?
JZ: Again, despite White Castle’s best efforts to make it about something else, this case was never about how damages should calculated under the statute. The court made very clear that that issue was not before the court. White Castle is not really trying to avoid a multi-billion dollar damages award, which it absolutely knows it absurd. What they wanted to do, the reason that this happened at all is because they wanted to avoid all accountability for ignoring the law. Of course, had they won, Latrina Cothron would have gotten nothing. Her case would have been dismissed and thrown out of court. That is why this all arose in the first place because, again, the violation of her rights began the day after the statue was passed in 2008 and White Castle did nothing to comply with the law for ten years until 2018. So if it had gone their way, well, she would be out fo luck, as would anybody else in her position. So, we are very gratified that the courts rejected the theory that, ‘Hey, because the company took, stored, disseminated biometrics without informed consent once, they have the right to do it again and again and agin as much as they like without legal consequences.’ That is essentially what has happened. So, this stuff, the damages calculations, I’m at a loss to understand why they think this is happening. All I can conclude is that this concoction, which originally started because they simply wanted to have a basis to remove case to federal court that have to meet the $5 million cough-up limit so in many cases they had to calculate damages in this outrageous manner in order to justify removal to federal court. It’s a pretty low bar. If there’s any conceivable way you can get there, it’s a very low standard. Anyway, I think they are trying to just distract, shift focus away from their conduct, blame the client, blame the courts, try to get sympathy from Springfield to repeal this law, which passed unanimously in 2008. Every Republican and every Democrat had to vote in favor of this law after every corporate lobbying group had their chance to chime in, explain why it’s unfair, needed to be changed, and it was passed. Ms. Cothron, employees, is not responsible for White Castle’s disregard of the law. By the way, if I may, we’re not against the responsible use of biometric technology. Thousands of companies in Illinois use it responsibly in full compliance with this statute with no problems, no threats of multi-billion awards, whatsoever. By the way, White Castle has used the technology, unabated, continuing to this day, for close to 20 years. They have not stopped using biometric technology. They finally came into compliance in 2018.
MB: You’re right and I think in the parade of horribles, there is a verdict now that we can pull from where there was no every single clock-in accrual. It was a federal district court, I believe, has given a verdict on BIPA and, while it was a putative damage award, because that case called for it, it was not an every clock-in, every time you punch the device, billions and billions of dollars award.
JZ: You’re speaking about the Rogers v BNSF Railway Company verdict trial overseen by an extremely smart, knowledgeable judge, Judge Kennelly in federal court, who is a student to fit law, who follows the law to the letter. Yes. After the jury decided that BNSF in that case number 1 broke the law and number 2 did it in a willful and reckless manner, the judge, Judge Kennelly, correctly applying the law, said that that is now $5,000 per person for these violations, which is exactly the manner that we have always advocated, in every plaintiff, every serious plaintiff anyway, for how damages in these cases are calculated. If White Castle was right, which they’re not, but if they were, then. yes. Judge Kennelly would have to get his very large calculator out and say, ‘Alright. It’s 5,000 times every clock in or out every day for every employees.’ Which, everyone knows is nonsense.
MB: This case. The Cothron case you just went to the supreme court has had quite a journey procedurally, right? You mentioned it started out in, I’m assuming, Cook County.
JZ: Yeah. It actually took a pretty unusual path. It’s ben about three years to get here so yes. We originally filed the lawsuit in Circuit Court of Cook County. It was removed to federal court. So, now we’re in front of Judge Tharp, the trial judge. One of the immediate dispositive motions filed by White Castle was a motion that the case has to be dismissed outright because, again, it accrued back in 2008, the very first time we took Ms. Cothron’s biometrics without consent, even under a five years limitation case, you filed too late and so the case should be dismissed. Judge Tharp, also an astute, very knowledgeable judge, ruled against White Castle and had a very thorough comprehensive, well-written opinion on the accrual issue under the BIPA statute. He did allow for an immediate, interlocutory appeal to the Seventh Circuit because it has been an undecided decision at the appellate level. We brief the case before the issue before the Seventh Circuit. The court said, ‘We agree with plaintiff’ because we had made it part of our request that this is an important question of state statutory interpretation. It is best decided in first instance by a state court as last resort, the Illinois Supreme Court so we are going to agree to send it to Illinois Supreme Court so they can hear it. They did hear it and we argued it back in May and here we are. We got the decision last Friday so, yeah. It’s a bit unique to take that path to how we got here and now we’re going to be sent back into the federal system to effectively start litigating the case. We haven’t even done discovery.
AB: Yeah. I’m impressed with how much you’ve accomplished in three years but, also procedurally where you simultaneously are. We were talking about this before we started. The state supreme court is trying to punt this to the legislature, which makes sense to some degree, so it’s going from state court to circuit court to district court to federal appellate court to state supreme court back to federal court and potentially to the state legislature.
JZ: Well, that’s funny too because ever since these cases started to be filed in 2016, 2017 and it became clear that there were some perverse violations of this statute. Some very serious egregious violations and lawsuits started to be filed by aggrieved folks, there’s been lobbying by very powerful corporate interest groups to repeal the law in Springfield. So, that’s been going on for years. That isn’t working either. The BNSF verdict that, Max, you alluded to, it’s not a fluke. The jury came back in that caae in an hour and a half. That’s not striking me as a jury that’s struggling with this; that thinks this is unjust or unfair or that the law is wrong. That tells me that people are very sensitive and very concerned about how their sensitive data is maintained in today’s day and age and rightfully so. Ordinary people get it right and are smart. The state legislature would be weary to go backwards in time given the extensive public support for this statute.
MB: In terms of the challenges to it, in a lot ways it is even simpler than wage and hour cases because there are various affirmative defenses or exemptions throughout the FLSA and certain wage statutes that give companies, for better, I think for the three of us on this podcast, for worse, wiggle room when it comes to overtime wages and the minimum wage. There are really very few exceptions written expressly into this law. Now, proper HIPPA exemptions being one of them because that is also something that you and others have gotten the joy of litigating up and down the Illinois appellate courts.
JZ: And we will again before the Illinois Supreme Court as of two weeks ago. We’ve been notified of that.
JZ: No. It hasn’t been before the supreme court yet.
MB: No! I just mean you again and then that issue again at the appellate level.
JZ: Fourth time in less than a year.
MB: Well, because the HIPPA issue did at least go up to the appellate court at one point and was decided.
JZ: By the Illinois Appellate Court. That is our decision. That is the decision that recently was granted a petition for a leave to appeal by the Illinois Supreme Court so we will be defending the Illinois Appellate Court’s decision on that as well.
MB: That seems much simpler to me even then the other two which is essentially, if there is something patient care related about patient privacy where a patient’s biometrics are scanned, it make sense that a HIPPA exemption might apply. But a custodian or an RN who is clocking in and out at the facility, it doesn’t really track that HIPPA should somehow apply to that interaction.
JZ: Well, the defendant in that case, a powerful hospital group, doesn’t see it that way. They believe, that the Illinois legislature, even though there is no statement to this affect in the statute and for no reason, no logical reason, articulated or otherwise, gave hospital groups a pass when it came to complying with BIPA for their employees. They have a very, I am going to be as polite as I can, creative interpretation of the statute to justify that. Clearly, the statue is to provide an exemption in taking biometrics from patients who are already protected in the very strict HIPPA regulations, which provide for criminal penalties for unlawfully disclosing data. That of course makes sense. No such logic applies to taking data from hospital employees, of course.
AB: I am also, again, impressed by the number of BIPA cases the supreme court has taken and issued opinions on, which is going to be in a four year period starting back in 2019 with Rosenbach continuing through now. They’ve been pretty active in this space. I can’t remember another law where the state supreme court has done that much work.
JZ: I agree and I can’t either. I think this really brings home the importance of this statute and I think that we are very lucky in Illinois to be the only state so far to have enacted a strict, important statute like this that protects biometric privacy. I think the court understands the importance of the statue and the rights it protects and wisely wishes to provide some certainty and clarity to it. They have, most recently on Friday with the accrual issue. A couple of weeks ago on the statute of limitations issue, which the defendant in that case had been arguing it should only be a one year limitations period. The statute itself does not provide for a limitations period and typically, as the court has ruled, absent some other compelling reason, the default five years limitations period applies. That’s what they held. We were very gratified by that unanimous opinion as well.
MB: So, you’ve been up to the state supreme court arguing on how many different issues on BIPA yourself?
JZ: So far, it’s been three. We’ve discussed two of them. The one that we argued most recently was a few weeks ago. It’s probably the only one that the defense has prevailed on, is on the union LMRA exemption defense where the defendant has said, ‘Well, this is really governed by a CBA for unionized employees only and so it’s not properly addressed in court. You have to go through the union grievance procedure.’ The Seventh Circuit years ago, on a case called Mille v Southwest Airlines, ruled in favor of the defendant. We believe it was based on a misapprehension of the facts and the law on that case. We’ve been trying to advocate that position in the Illinois state system that the was a mistake in ruling because, of course, the Illinois courts don’t have to follow the federal courts in that regard, but because it is a federal statute, the LMRA, typically some deference is owed. So, that’s sort of a big hurdle we’re attempting to overcome. We argue. We don’t have a ruling but we were at least doing everything that we can to get unionized employees the same rights ass everyone else in Illinois.
MB: So, weird scenario where you would be disadvantaged from this protection because you have the benefit of a CBA, but a CBA that never really would have contemplated this issue.
JZ: And that’s what’s so baffling about it. The CBA does not talk about data privacy, privacy in the workplace, biometrics, the BIPA statute. It doesn’t touch upon it at all and that’s what we were trying to explain. From a practical standpoint, if an employee attempted to grieve they would need to point to something in the CBA that the employer allegedly violated. CBA is just contact so what provision did they violate, did they break? There isn’t one. There’s something called a management rights clause that’s in very CBA that basically say that things that aren’t really discussed in this CBA are reserved for management, which is true but anything that’s legal is reserved for management. That doesn’t give them the right to now break the law. That doesn’t mean that management can do things that are illegal. So, if it’s not in the CBA, that means management can decide when to give a raise, how much of a raise, when to give promotions, how to handle employee disciplines. Things that employers have every right to do because there’s no law saying that you can’t but that does not meant that you know get to break the BIPA statute because there’s a management rights clause. It’s kind of a nuance. We understand how the Seventh Circuit wasn’t present well or whatever the problem was. That wasn’t our case, by the way. We didn’t do that. But we are doing our best to do what we can for Illinois unionized employees. It remains to be seen how it’s going to play out.
MB: Anything else, Jim, that you would like to cover on any of these decisions that have come down favorably or otherwise before we wrap?
JZ: You know, just that it sometimes appears to folks that I am single-handedly doing this. I am not. I have a team of really smart, dedicated, hardworking lawyers at my firm who I’m exceedingly proud of who have bent over backwards, worked well into the nights and weekends, to prepare briefing on this to do mock oral arguments to get us ready to fight these fights. Without them, I wouldn’t be talking to you today. We wouldn’t be able to do the work that we do so I really want to make it clear that is is a team effort. I’m exceedingly proud of my team.
MB: There you have. Jim Zouras, single-handedly, without any help from a team, fighting BIPA up and down the court. No. All kidding aside. Thank you to all you and your crack team at Stephan Zouras for advocating on this law, for being pioneers in it, for pushing the legislature and the courts to make sure that workers’ rights are protected on biometric privacy and just data privacy in general. I think we recognize with every day and a new hack or data breach coming through these issues become increasingly important. We certainly see on the other side up and down LinkedIn and everywhere else, the defense bar going nuts about data security and cybersecurity and all the things they need to do on their end. God knows they could do that on the workers’ side as well and just make sure they’re following the, as you so helpfully pointed out, the low bars that BIPA imposes, the pieces of paper they need to disseminate, and the minor policies they need to enact so they don’t run afoul with this and that employee data.
JZ: I always want to thank you guys for creating and sticking to this forum to discuss, intelligently, employee rights; workers rights; underprivileged, disadvantaged folks who usually don’t have a voice. You guys are doing an amazing job of providing that voice for public knowledge and to speak the truth. I’m gratified that something like this exists in Illinois.
MB: Thank you for the kind words, Jim. Amit, would you like to…
AB: I would like to do this but I think Jim did this already like last time. We like to end our show with a shout-out of the week with something positive in the news whatnot. I think here, I just, candidly, want to reiterate your shout-out for your team and all the work you’ve been doing in this space for the last four plus years. Again, it is really really rare to have a state supreme court make four plus major decisions on an act in a small time frame. A lot of this is because of the hard work that you’ve done and your team has done. Candidly, from my perspective, I really enjoyed it here and when you did it the last time, the shout-outs you do of your own team. I think that’s awesome.
JZ: I don’t want to leave without also remarking what an honor and a privilege it is to argue a case before the Illinois Supreme Court. It is not something I ever imagine once, much less four times. I’m pretty blown away by that privilege. Win or lose, I consider it the highest professional achievement significance of my career.
AB: And, on top of that, you have a case here that was both in the the Seventh Circuit and the Illinois Supreme Court, which is incredibly rare. The Vinn Diagram of that is incredibly small.
MB: I’ll add as a shout out too that I just learned this week that Jim is a University of Tennessee football team.
AB: Oh, I’m sorry.
MB: I’ll shout University of Tennessee Rocky Top Volunteers for beating our Amit’s Alabama Crimson Tide, several months ago but it is fun to rub it in his face.
JZ: I am, to be clear, a Tennessee ball by marriage. I met my wife in 2008 and that was right about the time that they fell off the cliff. But, in recent times, things seem to be trending back to the glory days that my wife has talked about in her day from the late 1990s but we will see.
AB: I did enjoy the videos and the tracking of the goal post after the game ended.
JZ: My wife was crying tears of joy all evening that night, I remember it well.
MB: My childhood 1990s self, who enjoyed the, I don’t know if that’s burnt orange or whatever orange that Tennessee has, and hearing Rocky Top every five seconds was really happy. Anyway, Jim, thank you for making time for us this Sunday morning to do this on top of everything else you do and all your obligations. We’re really grateful once again for you advocacy, for the ways you are able to break down BIPA and the litigation issues that, at times feel very technical and esoteric for our audience and just all that you do. Thank you so much.
JZ: Thanks again to you guys. I really enjoy being here.