Mary Smigielski Speaks With The Recorder About McDonald’s Illinois BIPA Lawsuit

Chicago, Ill. (June 4, 2021) - Chicago Partner and Co-Chair of Lewis Brisbois’ Illinois Biometric Information Privacy Act (BIPA) Practice Mary A. Smigielski recently spoke with The Recorder (part of Law.com) regarding a recent BIPA proposed class action filed against McDonald’s that arose from the company’s alleged use of voice recognition technology at its drive thrus. Her comments were included in two separate Law.com articles.

The first article, published in The Recorder and titled “Will Voice Recognition Tech Be the Target of a New Wave of BIPA Complaints?,” describes that in the McDonald’s lawsuit, the plaintiffs contend that the company is using voice recognition technology in its drive-thrus to identify repeat customers. In speaking with The Recorder regarding the likelihood that this lawsuit will succeed, Ms. Smigielski expressed skepticism, explaining that many cases involving voice recognition technology have not advanced to the discovery stage.

In addition, Ms. Smigielski told The Recorder that she expects to see more voice recognition BIPA suits like the McDonald’s action, noting, “I feel as though the cases related to employers and time clocks and fingerprints and the like have mostly been filed, and I think that the plaintiffs bar is looking for something new.” She added, “And of all the cases that have been filed, I would say that voiceprints are a smaller proportion, so I think that there will be more of those cases.”

The second article, published on Law.com in a "What Next?" roundup and titled “Would You Like Fries With That BIPA Complaint?,” noted that Ms. Smigielski had not yet seen decisions interpreting what constitutes a “voiceprint” under BIPA. “The general lay definition of voiceprint is that it is a set of measurable characteristics of a human voice that uniquely identifies an individual,” Ms. Smigielski explained. “Although McDonald’s is using AI, that does not mean that it is collecting a ‘voiceprint’ as defined by BIPA or that McDonald’s actions are even covered by BIPA,” she added, concluding, “It is doubtful that McDonald’s is identifying anyone with this technology.”

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.