Mary Smigielski Quoted in Law360 Article on Seventh Circuit BIPA Ruling

Chicago, Ill. (November 19, 2020) – Chicago Partner Mary A. Smigielski recently provided her insight regarding a Seventh Circuit ruling for a Law360 article titled, “7th Circ. Further Clarifies Standing Of Biometric Privacy Suits.” The article discusses the manner in which the U.S. Court of Appeals for the Seventh Circuit has further clarified when federal courts may exercise jurisdiction over claims filed pursuant to the Illinois Biometric Information Privacy Act (BIPA).

As the article describes, in the matter of Fox v. Dakkota Integrated Systems, the plaintiff sued her employer in state court, alleging that it violated Section 15(a) of BIPA by retaining her handprint after her employment ended and beyond the time authorized by law. Her employer then removed the case to federal court, which remanded the plaintiff’s Section 15(a) claim to state court based on a prior Seventh Circuit ruling in Bryant v. Compass Group USA, Inc. In Bryant, the plaintiff had alleged that her employer violated Section 15(a) of BIPA by failing to disclose publicly its biometric policies, and the Seventh Circuit held that she did not have standing to pursue her claims in federal court. The plaintiff in Fox appealed her matter to the Seventh Circuit.

On appeal, the Seventh Circuit held that the lower court erred in remanding the plaintiff’s claim to state court because she had alleged “a concrete and particularized invasion of her privacy interest in her biometric data.” Unlike the plaintiff in Bryant who had claimed merely a procedural failure by her employer to disclose its biometric policies, the plaintiff in Fox levied broad allegations arising from violations “of the full panoply of its Section 15(a) duties — the duties to develop, publicly disclose and comply with data retention and destruction policies.”

Ms. Smigielski told Law360 that the Seventh Circuit’s opinion in the Fox matter demonstrated that the Bryant ruling was narrower than it had seemed. Explaining that Section 15(a) of BIPA is broader than the specific issue that arose in the Bryant case, she noted that the Fox ruling will likely allow more BIPA defendants to remove appropriate cases to federal court and keep them there.

"What I had seen is that everyone was assuming anything under 15(a) needs to be in state court. But that's not what the Seventh Circuit just said," Ms. Smigielski described. She added, "More of these cases are going to stay in federal court. We're not necessarily going to see the split of one narrow portion of 15(a) claims sent back to state court."

Ms. Smigielski co-founded and serves as the co-chair of Lewis Brisbois’ Illinois BIPA Practice, the first in the nation. She has been on the cutting edge of BIPA litigation, providing commentary to a number of outlets on the topic, and recently co-authoring an Insight article for Bloomberg Law on the potential nationwide implications of BIPA during the COVID-19 pandemic. Ms. Smigielski is also a member of the firm’s Labor & Employment Practice.

You can read the full Law360 article here.

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