Mary Smigielski Speaks with Law360 Regarding Highly Anticipated BIPA Arguments

Chicago, Ill. (September 13, 2021) – 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 “3 Major Biometric Privacy Arguments To Watch This Month,” which discusses the upcoming oral arguments on significant issues in pending BIPA matters.

As the article describes, two of the three cases, which the U.S. Court of Appeals for the Seventh Circuit will hear this week, “could dramatically change the scope and path of litigation under Illinois’s landmark biometric privacy law.” The first matter, Cothron v. White Castle System Inc., involves the question of how claims accrue under BIPA (i.e., whether each alleged violation triggers a new claim period). In the second case, Fernandez v. Kerry Inc., the court will consider whether the Labor Management Relations Act preempts certain claims of workers under BIPA. In addition, only weeks later, the Illinois Supreme Court will hear arguments in McDonald v. Symphony Bronzeville Park LLC regarding one of the most common defenses advanced under BIPA, namely, whether Illinois’ workers’ compensation law prevents claims for statutory damages under BIPA.

Ms. Smigielski told Law360 that receiving guidance from the appellate court as to when BIPA causes of action accrue “will simply drive these lawsuits in different directions.” She explained that if the court finds that BIPA violations pile on top of one another, “the worst-case scenario has occurred” because plaintiffs will be further motivated to initiate BIPA lawsuits with large settlement demands. Alternatively, if the court finds that BIPA claims arise only from initial violations, this decision will also “have a very significant impact on the future of these cases, because they might not be as attractive to the plaintiff’s bar,” she said.

In addition, Ms. Smigielski expressed optimism on behalf of employers with respect to the Illinois Supreme Court case of McDonald, telling Law360 that it was unlikely that the high court would rubber stamp the appellate court’s decision, which held that Illinois’ workers’ compensation law did not bar the plaintiff’s BIPA claim. In making this prediction, Ms. Smigielski noted that the justices would likely “have something beyond that to say about it.” Ms. Smigielski further observed that a reversal of the appellate decision would effectively dispose of many employment-related BIPA suits.

Ms. Smigielski has been on the cutting edge of BIPA litigation, frequently providing commentary to a number of 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. 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).

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