Mary Smigielski Speaks with Law360 About Key Anticipated Decisions from Illinois Supreme Court

Chicago, Ill. (July 15, 2022) - Chicago Partner Mary A. Smigielski recently spoke with Law360 for an article highlighting several major cases the Illinois Supreme Court will be deciding in the coming months, including two cases involving issues that will affect dozens of pending Biometric Information Privacy Act (BIPA) matters, as well as a case regarding the constitutionality of a prejudgment interest statute.

As the article describes, the court is expected to provide guidance later this year on the issue of whether damages accrue under BIPA every time biometric data is captured without informed consent, or just the first time. This matter, Cothron v. White Castle Systems Inc., involves a plaintiff who claimed that White Castle violated the law when it required employees to scan their fingerprints to clock in and out of work. Ms. Smigielski, who previously spoke with Law360 about the case, recently told the publication that if the plaintiff prevails on the issue of claim accrual, the defendants in future matters could be responsible for paying damages so high, it would destroy their businesses. "I would fully expect some companies to declare bankruptcy. Because even when there's insurance in place, those policies only go so far," she explained. "Some of the demands that certain members of the plaintiffs' bar have made on a per-violation or per-scan theory have exceeded a billion dollars."

In addition to determining the question of claim accrual, the Illinois Supreme Court is poised to decide whether BIPA claims are subject to a one- or five-year statute of limitations. On that topic, Ms. Smigielski told Law360 that if the court holds BIPA is governed by a one-year statute of limitations, it would result in the termination of several cases filed outside of this window, as many companies learned about BIPA over the last few years and have implemented policies to ensure compliance with the law.

Moreover, Illinois’ highest court is also expected to determine the constitutionality of a state law that adds 6% prejudgment interest to personal injury and wrongful death verdicts. In discussing the law, Ms. Smigielski noted, “It's a very plaintiff-friendly statute.” In May, the statute was declared unconstitutional by a Cook County trial court, and an appeal is expected.

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 Law360 article, titled "Illinois Cases To Watch In 2nd Half Of 2022," here (subscription may be required). Learn more about our Illinois BIPA Practice here.