Mary Smigielski Speaks with Bloomberg Law About Application of Recent Illinois Supreme Court BIPA Ruling

Chicago, Ill. (March 10, 2023) - Chicago Partner and Co-Chair of Lewis Brisbois’ Illinois Biometric Privacy Act (BIPA) Practice Mary A. Smigielski recently spoke with Bloomberg Law for an article regarding a case that is likely to “provide a first glimpse” into how courts may choose to adjust damages under BIPA in accordance with the Illinois Supreme Court’s decision in Cothron v. White Castle.

As the article, titled “BNSF’s $228 Million BIPA Judgment in Play After ‘White Castle’,” describes, a Chicago judge is currently presiding over post-trial motions in a BIPA matter where the court entered a $228 million judgment. Specifically, the plaintiffs in Rogers v. BNSF Railway argued in their post-trial motion that the judgment was too low in light of the Cothron decision, which held that a BIPA violation occurred each time a worker’s fingerprint was scanned. In BNSF, the court had calculated the award based on a finding of just one violation per worker, rather than one per scan. In contrast, BNSF contended in its post-trial motion that the judgment was too high. It argued that the court mistakenly treated the damages award as mandatory, notwithstanding that Illinois’ high court determined, in Cothron, that BIPA damage awards were discretionary.

In discussing the implications of the Cothron holding, Ms. Smigielski told Bloomberg Law that calculations based on multiple violations could result in a “truly astronomical damages award.” She further explained that an award so large it could place a business into bankruptcy or destroy it altogether was not “what the court had in mind.” She noted, “One of the most important implications that I see coming out of the White Castle ruling is that the court affirmed what is in the plain language of the statute, that damages ‘may’ be awarded but don’t have to be awarded.”

Ms. Smigielski, who co-founded Lewis Brisbois' BIPA Practice – the first in the nation – also serves as co-host of The BIPA Radar podcast series, which recently covered the Cothron decision. She has been on the cutting edge of BIPA litigation, frequently providing commentary to the news media on the topic, including for another recent Bloomberg Law article. In addition to handling BIPA matters, Ms. Smigielski serves as the head of the firm’s Chicago Labor & Employment team. Her practice includes class/collective actions and single-plaintiff employment litigation, administrative charges, nationwide counseling, training, and sensitive workplace investigations, including at the C-Suite level.

Read the full Bloomberg Law article here (subscription may be required).

Related Attorneys

Find an Attorney

Each of the firm's offices include partners, associates and a professional staff dedicated to meeting the challenge of providing the firm's clients with extraordinary service.