Old Dominion Moves for Stay Awaiting Ruling of Ill. High Court on BIPA Case

Old Dominion Freight Line moved a federal court to stay proceedings in a Biometric Information Privacy Act (BIPA) suit, pending the Illinois Supreme Court’s decision on the petition for rehearing filed in Cothron v. White Castle System, said a Friday motion (docket 1:23-cv-02187) in U.S. District Court for Northern Illinois in Chicago. The Illinois Supreme Court’s decision on the petition has the potential to “significantly impact” the Old Dominion case, including the viability of certain named plaintiffs’ claims, the size of a putative class, the scope of potential discovery and the extent of any damages awarded, said the motion. Old Dominion requested a 21-day stay denying the motion to answer or otherwise plead to the second amended class action complaint. Plaintiff John Kararo alleged Old Dominion Freight Line’s Kronos time clock system required him and other employees to scan, upload and use their fingerprints to use its time clock and track hours worked (see 2304070049), said the April privacy complaint. The time clock system used, collected, stored and “otherwise obtained” Kararo’s unique biometric identifiers without prior consent, in violation of Illinois’ BIPA law, which codified that individuals have a right to privacy concerning their biometric identifiers and biometric information, said the complaint. On March 10, the defendant in Cothron v. White Castle System filed a petition for rehearing of that decision in Illinois Supreme Court, said the motion. That court’s Feb. 17 order “is not final, binding precedent,” it said. The Illinois top court’s mandate in Cothron is stayed pending disposition of the petition, but even if the court denies the petition, its mandate will not issue earlier than 35 days after the order, the motion said. The Illinois Supreme Court’s opinion in Cothron addresses the issue of when claims under Section 15(b) accrue and whether an alleged BIPA violation occurred every time plaintiffs and members of the putative class used the time clock system, or just the first time they did so, said the motion. If the Illinois Supreme Court “changes course” in Cothron, “per-scan” damages “would be off the table,” said the Old Dominion motion. “Depending on the outcome of the petition for rehearing in Cothron, Plaintiffs may not even be able to argue that Old Dominion could be held liable for statutory liquidated damages for each alleged use of the time clock at issue, whether to raise a demand in any potential settlement negotiations or at trial,” it said.