Mary Smigielski, Josh Kantrow Provide BIPA Commentary for Cybersecurity Law Report

Chicago, Ill. (February 19, 2021) - Chicago Partners and Co-Chairs of Lewis Brisbois’ Illinois Biometric Information Privacy Act (BIPA) Practice Mary A. Smigielski and Josh M. Kantrow recently provided commentary for a Cybersecurity Law Report article regarding recent rulings on key BIPA issues, characteristics of newer BIPA cases, and settlement dynamics. The article, titled “Big Questions for BIPA Case Law in 2021,” is the first installment in a two-part series that discusses litigation trends in BIPA class actions. The second part of the series will focus on strategies for addressing biometrics in contracts and compliance programs, as well as related insurance coverage issues.

As the article describes, the docket of BIPA class actions continues to grow. With more than 750 state and federal class actions already pending, plaintiffs filed an additional 55 suits during January alone. Nevertheless, several questions surrounding statute of limitations, territoriality, removal, bases for BIPA violations, among others, still remain.

Ms. Smigielski told CSLR that because BIPA did not specify a statute of limitations, this issue deserved appellate review. She explained that in the meantime, several courts have echoed an early ruling in Cook County that established a five-year limit, noting, “We do most settlements under a five-year statute of limitations.”

On the topic of territoriality, the article explains that to date, Illinois courts have permitted BIPA claims to proceed for events that occurred “primarily and substantially” in Illinois. However, businesses with various locations are increasingly using technology to prevent worker time theft. According to Ms. Smigielski, these organizations must pay attention to BIPA considerations regardless of how inexpensive and easy to obtain the technology has become. She described that although “[s]ome of these systems cost $60 on Amazon,” few companies have actually adopted BIPA-compliant procedures along with the devices.

Mr. Kantrow pointed out that in addition to questions surrounding statute of limitations and territoriality under BIPA, courts have been “really struggling with standing and what case belongs in state court.” He noted, “Sometimes they make fine distinctions and it’s difficult to see why.” Ms. Smigielski agreed, adding that “plaintiffs are modifying pleadings to work around the law as it develops.” To illustrate the challenges regarding this issue, Mr. Kantrow described a lawsuit that he removed to federal court, which was then remanded to state court with a single BIPA claim. He explained that following the remand and a Seventh Circuit ruling, “we went to state court and removed the claim again. The plaintiffs again moved in federal court to remand, and asked to sanction us for removing it twice.” Mr. Kantrow also described a further example where, in a recent settlement with unusual provisions for leftover funds, the parties “all agreed to remand it back to state court for the approval.”

Furthermore, Ms. Smigielski explained that the success of plaintiffs’ “violation per-scan theory” will affect organizations’ BIPA liability more than any other issue. She described that the law was silent on how violations accrue, noting that most plaintiffs’ attorneys have sought damages for each BIPA requirement – “one for not having consent, one for not having a public policy, one for disclosing.”

According to Ms. Smigielski, defense lawyers are currently focused on the issue of whether BIPA even covers the information that most companies collect, which often includes only placeholder digits that do not represent a person’s unique geometries. She explained that defense lawyers have been determining how to argue that BIPA does not apply under such circumstances, noting that “a lot of companies have the wealth to fight what they view as frivolous litigation” and are waiting for “the right technology and the right judge” to move forward.

Ms. Smigielski has been on the cutting edge of BIPA litigation, frequently providing commentary to a number of outlets on the topic and co-authoring an Insight article for Bloomberg Law on the potential nationwide implications of BIPA during the COVID-19 pandemic. In addition to co-founding Lewis Brisbois’ Illinois BIPA Practice, the first in the nation, she is also the head of Lewis Brisbois’ Labor & Employment Practice in Chicago.

Mr. Kantrow defends class action litigation brought against Illinois-based companies under BIPA, provides counsel on the emerging BIPA legal landscape, and provides strategic direction to address BIPA compliance, insurance coverage, and litigation. Clients frequently retain him to litigate complex, high exposure cases throughout the country. In addition to serving as co-chair of Lewis Brisbois’ BIPA Practice, Mr. Kantrow is a vice-chair of Lewis Brisbois’ Professional Liability Practice. He also frequently appears as a guest on TV, radio, and podcasts discussing technology and cyber risks, among other issues.

Read the full CSLR article here.