Mary Smigielski Speaks with Law360 on Illinois Supreme Court BIPA Workers' Comp Law Ruling

Chicago, Ill. (February 7, 2022) - Chicago Partner and Co-Chair of Lewis Brisbois’ Illinois Biometric Information Privacy Act (BIPA) Practice Mary A. Smigielski recently spoke with Law360 for an article titled “Ill. High Court BIPA Ruling: Next, How Big Can Damages Get?” The article discusses the Illinois Supreme Court's ruling in McDonald v. Symphony Bronzeville Park LLC, which held that state workers' compensation laws do not preempt claims for statutory damages under BIPA, but left open the question of how BIPA claims accrue.

Ms. Smigielski told Law360 that although employers have made great efforts to comply with BIPA, the ambiguity of the statute creates challenges. She explained that she was not surprised by the Illinois Supreme Court's decision, but was struck by Justice Michael Burke's concurring opinion, in which he observed that the lead plaintiff in the matter preserved her case through "gamesmanship in pleading." Specifically, the plaintiff had amended her complaint to remove any allegation that she suffered mental anguish as a result of her biometric information being compromised.

In commenting on Justice Burke's concurrence, Ms. Smigielski opined, "If there was an actual injury alleged, workers' comp would have applied," adding, "He made an acknowledgment that there isn't any physical, emotional, or financial injury. That's exactly what has frustrated companies." She further noted, "That is a very specific ruling on BIPA. If there is an actual injury on BIPA, that is a situation where it will not proceed in court. The judge made clear, there are circumstances where workers' compensation preemption applies." While acknowledging that BIPA plaintiffs may engage in artful pleading, Ms. Smigielski stated, "when one must go through the whole course of litigation, that's a different story."

In discussing the future of BIPA claims in light of the Illinois high court's ruling, Ms. Smigielski told Law360 that she did not expect a rush of settlements. She explained, however, that the decision likely "will open the floodgates to have suits against employers who have not been sued already."

Ms. Smigielski has been on the cutting edge of BIPA litigation, frequently providing commentary to a number of news outlets on the topic, including for another recent Law360 article on pending BIPA cases involving claim accrual issues. In addition to co-founding Lewis Brisbois’ Illinois BIPA Practice, the first in the nation, she is also the head of Lewis Brisbois’ Labor & Employment Practice in Chicago.

You may read the full Law360 article here (subscription may be required).