Mary Smigielski Speaks with Cybersecurity Law Report About BIPA Litigation Trends

Chicago, Ill. (September 9, 2022) - Chicago Partner Mary A. Smigielski recently spoke with the Cybersecurity Law Report (CSLR) for an article titled, “Shaping the BIPA Landscape: Notable Trends and Developments.” The article, which is the first of a two-part series, discusses recent developments in litigation involving the Illinois Biometric Information Privacy Act (BIPA). The second part of the series will provide guidance regarding strategies that companies may employ to avoid liability under BIPA.

As the article describes, BIPA is expected to remain one of the most heavily litigated privacy statutes. Several significant BIPA settlements have taken place recently, and the Illinois Supreme Court is currently poised to decide on two notable cases - Tims v. Black Horse Carriers and Cothron v. White Castle Systems, Inc. In discussing how BIPA litigation is unfolding, Ms. Smigielski told CSLR that current cases involve various types of companies and captured information, including scanners used to check temperatures, fingerprints related to green cards, and many others. “There are a lot of cases getting filed now that do not initially appear to relate to biometric technology, but we will not know until we have rulings on them,” she explained.

Ms. Smigielski also described the new BIPA settlement structure pursuant to which a class member no longer automatically receives payment following a settlement. Instead, a plaintiff must submit a claim if they believe that they have been impacted by the defendant’s actions. Moreover, on the topic of insurance coverage for BIPA claims, Ms. Smigielski told CSLR that many insurance companies are now excluding BIPA claims from their policies. She also pointed out that small companies do not have the resources that large companies do to defend BIPA lawsuits in the absence of coverage.

Ms. Smigielski is the co-chair of Lewis Brisbois' BIPA Practice, the first in the nation, and head of the firm's Chicago Labor & Employment team. She has been on the cutting edge of BIPA litigation, frequently providing commentary to legal news 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. Along with her BIPA work, Ms. Smigielski's 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.

Read the full CSLR article here (subscription may be required). Learn more about our Illinois BIPA Practice here.