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.
____________________
SUBMITTED AUGUST 14, 2023 — DECIDED AUGUST 23, 2023
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Before SYKES, Chief Judge, and EASTERBROOK and
BRENNAN, Circuit Judges.
SYKES, Chief Judge. In December 2018 Latrina Cothron
filed a proposed class-action lawsuit in Illinois state court
against White Castle System, Inc., her employer. For many
years Cothron has worked as a manager at one of White
Castle’s hamburger restaurants in Illinois; her suit accuses
the company of violating the Illinois Biometric Information
2 No. 20-3202
Privacy Act, 740 ILL. COMP. STAT. 14/1 et seq., by failing to
obtain her written consent before implementing a
fingerprint-scanning system that requires her to scan her
fingerprints to access her work computer and payment
records.
White Castle removed the case to federal court and later
sought judgment on the pleadings, arguing that Cothron’s
suit was untimely because her claim accrued in 2008 with
her first fingerprint scan after the Act’s effective date.
Cothron countered that a new claim accrued with each
fingerprint scan—not just the first one—so her suit was
timely with respect to any scans without her consent that
occurred within the limitations period.
The district judge agreed with Cothron’s claim-accrual
theory and denied the motion, but he certified his order for
immediate appeal under
28 U.S.C. § 1292(b). Because the
order involved a controlling question of law on which there
was substantial ground for disagreement, we accepted the
interlocutory appeal. Cothron v. White Castle Sys., Inc.,
20 F.4th 1156, 1160 (7th Cir. 2021).
Following oral argument, we certified the novel timeli-
ness question—namely, whether a claim accrues under the
Act with each unlawful biometric scan or only the first one—
to the Illinois Supreme Court.
Id. at 1166–67. The state su-
preme court accepted the certification and has now an-
swered the question, holding that “a separate claim accrues
under the Act each time a private entity scans or transmits
an individual’s biometric identifier or information in viola-
tion of section 15(b) or 15(d)” of the Act. Cothron v. White
Castle Sys., Inc.,
2023 WL 4567389, at *1 (Ill. Feb. 17, 2023) as
modified on denial of reh’g (July 18, 2023).
No. 20-3202 3
After denying White Castle’s motion for rehearing, the
Illinois Supreme Court issued its mandate on August 22. In
the meantime we had directed the parties to file position
statements under Circuit Rule 52(b). They have done so.
Cothron asks us to lift the stay in this case and enter an order
consistent with the state supreme court’s answer to the
certified question. White Castle asks us to expand the inter-
locutory appeal to include new questions concerning the
scope of a possible damages award and constitutional
arguments under the Due Process and Excessive Fines
Clauses.
The order before us concerned only the timeliness of
Cothron’s suit. The Illinois Supreme Court’s answer to the
certified question makes it clear that the suit is timely with
respect to some of the allegedly unlawful fingerprint scans.
That resolves this appeal. Accordingly, we lift the stay and
affirm the district court’s order denying White Castle’s
motion for judgment on the pleadings.
AFFIRMED
