Mary Smigielski Quoted in Law360 Article on Illinois Appellate Decision Addressing Accrual of BIPA Claims

Chicago, Ill. (September 22, 2021) - Chicago Partner and Co-Chair of Lewis Brisbois’ Illinois Biometric Information Privacy Act (BIPA) Practice Mary A. Smigielski was recently quoted in a Law360 article titled “BIPA Timing Decision Underscores Debate Over Claim Accrual,” which discusses a significant decision by the First District Illinois Appellate Court that provides long-awaited guidance regarding when claims accrue under BIPA.

As the article describes, in Tims v. Black Horse Carriers, the court determined that BIPA claims arising from alleged unlawful profiting or disclosure were subject to Illinois' one-year privacy claim limit, while those involving retention policy, informed consent, and safeguarding claims had a five-year limit. The article explains, however, that this decision will not be the “last word” on questions concerning claim accrual under BIPA. Other cases involving similar issues are currently pending in Illinois courts, and the Illinois Supreme Court has not yet provided its own guidance.

Moreover, the article notes the importance of dicta from the Tims decision, which explained that plaintiffs who proved a private company’s violation of multiple duties under BIPA "could collect multiple recoveries of liquidated damages." This language appears to align with the assertion of many BIPA plaintiffs that they may recover damages for each separate statutory violation, as opposed to only the first.

Ms. Smigielski told Law360 that this dicta may, indeed, be used by plaintiffs in future matters. She noted that dicta from other BIPA cases, including those against White Castle and Six Flags, have played an important role in this developing area of the law. "That is the language that ends up being literally all over the plaintiffs' briefs, and I think the same thing is going to happen with this language," she noted.

Ms. Smigielski has been on the cutting edge of BIPA litigation, frequently providing commentary to a number of news outlets on the topic, including for another recent Law360 article on pending BIPA cases involving claim accrual issues. 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.

You may read the full Law360 article here (subscription may be required).

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