Joseph J. Stafford Partner

A recent Illinois Supreme Court ruling that treats each scan of a person’s biometric information as a separate, actionable violation arguably incentivizes plaintiffs to delay bringing suit as long as possible for purposes of “racking up” damages. This is at least the third Illinois Supreme Court opinion that seemingly justifies exorbitant damage awards as a way to encourage private businesses to comply with BIPA.

The Illinois Supreme Court held a five-year limitations period applies to all causes of action under BIPA, rejecting the First District’s bifurcated approach, which applied a one-year limitations period to certain sections and a five-year limitations period to others.

On March 8, 2022, a federal court in the Northern District of Illinois held an Employment-Related Practices Exclusion in a general liability policy does not preclude a defense obligation for a proposed class action brought by the insureds’ employees under the Illinois Biometric Information Privacy Act. The court further found that a jury needs to decide whether the insureds breached the “as soon as practicable” notice condition in the policy by waiting 20 months to provide notice to the insurer.

Conflicting federal district court decisions highlight that the outcome of duty to defend claims under the Illinois Biometric Information Privacy Act (BIPA) may hinge on venue and/or choice of law considerations. Insurers should evaluate these considerations closely and examine how various jurisdictions handle certain general liability exclusions in other contexts in an effort to predict how a particular court may rule on coverage for BIPA claims.

After roughly seven years of inactivity, litigation related to the Illinois Biometric Information Privacy Act has grown exponentially since 2015. While the statute provides guidelines for companies collecting biometric data, its practical application in the court system has been much less clear. Recently, one of the most significant questions was addressed by the First District: What is the statute of limitations for BIPA claims?