Mary Smigielski Speaks with Law360 About First BIPA Jury Trial

Chicago, Ill. (October 11, 2022) - Chicago Partner Mary A. Smigielski recently spoke with Law360 for two articles related to the first jury trial taking place in a case brought under Illinois’ Biometric Information Privacy Act (BIPA).

The first article, titled “Landmark Ill. Privacy Law Faces First Jury Test” and published a day before the trial began, explains that key questions under BIPA still remain, including when claims accrue under the statute as well as which statute of limitations applies to BIPA claims. Ms. Smigielski told Law360 that during the trial, she would be paying attention to what evidence goes before jurors as well as their ultimate decision. "I would like to see how the average person is looking at BIPA and what their views are on it, and what their reaction is when there has been no actual harm," she explained.

The second article, titled “1st BIPA Jury Trial May Raise Coverage Headaches” and published under Law360's Insurance Authority, discusses the details of the class action trial brought by a plaintiff representing a class of 44,000 truck drivers. He sued BNSF Railway for allegedly violating BIPA by scanning his fingerprints for identity verification when he picked up and dropped off loads without the written, informed notice or consent required by the statute.

In discussing the issue of damages in this case, Ms. Smigielski pointed out the possibility that the jury could decide on a smaller amount of damages than what may be expected. She explained that a jury might look at the technical violations of BIPA and question exactly how the plaintiff and other members of the class were harmed. She told Law360, “The statute specifically says that the prevailing party ‘may recover,’ so it’s discretionary.” She further noted that if the jury were to decide that there was no actual harm, it could award the plaintiffs “absolutely nothing.” Ms. Smigielski explained, “If that happens, I think there’ll be very significant ramifications with these cases because the plaintiffs will realize that they do in fact, have risk here" when bringing suits alleging violations of the statute.

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 “Landmark Ill. Privacy Law Faces First Jury Test” here and “1st BIPA Jury Trial May Raise Coverage Headaches” here (subscription may be required). Learn more about our Illinois BIPA Practice here.