Josh Kantrow, Mary Smigielski Speak with Insurance Journal About Latest Illinois BIPA Ruling

Chicago, Ill. (February 22, 2023) - Chicago Partners and Co-Chairs of Lewis Brisbois' Illinois Biometric Information Privacy Act (BIPA) Practice Josh M. Kantrow and Mary A. Smigielski recently spoke with the Insurance Journal for an article about the Illinois Supreme Court's recent ruling in Cothron v. White Castle System, Inc. As discussed in our recent legal alert about the decision, the court in Cothron was answering a certified question from the U.S. Court of Appeals for the Seventh Circuit on the issue of whether claims accrue for each violation or only with the first scan or transmission of biometric data. The court found that claims accrue with each violation, an outcome that could lead to potentially astronomical damages in the many BIPA cases currently pending throughout the state.

Mr. Kantrow told the publication he was "not surprised by the ruling, given that every BIPA case that’s come before the Illinois Supreme Court so far has gone in the plaintiff’s direction." He continued, "The court has not seemed willing to do anything to curtail the scope and reach of the statute, as it continues to decimate and impair Illinois businesses’ ability to operate."

The article goes on to explain that the majority held "that policy-based concerns about potentially excessive damage awards under the Act are best addressed by the legislature." Ms. Smigielski noted this was a "pretty unusual" move for the court to "respectfully suggest a legislature review these concerns." She added, "We have heard that the legislature was poised to act depending on what the court did in this decision. Now, what’s going to transpire from that? It’s anyone’s guess."

The article also touched on the dissenting opinion – which Ms. Smigielski said, "completely disagreed with the majority and said that imposing punitive, crippling liability on businesses could not have been the goal of BIPA" – as well as the other recent BIPA decision in Tims v. Black Horse Carriers, which extended the statute of limitations on BIPA claims to five years (see our legal alert from February 2). Mr. Kantrow explained that these two decisions together will likely increase litigation, telling the Insurance Journal, "Even though the statute is 15 years old, and a lot of companies have already been sued and have settled their BIPA liabilities, BIPA litigation shows no signs of abating."

Mr. Kantrow regularly handles complex business litigation matters, including class action litigation, throughout the United States. He also has deep experience defending technology litigation matters, including cases involving BIPA, cybersecurity, data privacy/network security, and software developers.

Ms. Smigielski practice involves class/collective actions and single-plaintiff employment litigation, administrative charges, nationwide counseling, training, and sensitive workplace investigations, including at the C-Suite level. She has been on the cutting edge of BIPA litigation, co-founding the firm's BIPA Practice following the Illinois Supreme Court's seminal decision in Rosenbach v. Six Flags Entertainment Corporation, and is frequently asked to provide commentary to legal news outlets on the topic.

Read the full Insurance Journal article here.

RELATED: Listen to Mr. Kantrow and Ms. Smigielski discuss the past, present, and future of BIPA litigation in Lewis Brisbois' new podcast series, "The BIPA Radar," available here or wherever you get your podcasts.