Onslaught of BIPA Lawsuits Continue to Threaten Businesses Across Illinois

While several prominent claims under Illinois' "Biometric Information Privacy Act" have already settled, and claimants have received their checks (Facebook, Google, etc.), dozens of claims continue to remain in federal courts across Illinois. According to Law.com's "Radar," there were 34 cases filed between the Northern, Central, and Southern Districts of Illinois in August. 

The 34 number is larger than the average of 21 complaints filed monthly over the past calendar year, the sheer volume each and every months suggests this sort of litigation is unlikely to go away anytime soon. The unique sort of lawsuits, which arise from the landmark biometric privacy legislation which puts Illinois on an island on its own, has continued to create a unique headache for entities large and small. 

Litigation pertaining to the Act has been far reaching, but caselaw has continuously painted an increasingly clear picture as to obligations when a violation did in fact take place. For example, Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Ill. 2019), reiterated that the plain language of the statute specifically authorizes claims to move forward, even when no actually injury is demonstrated. This is crucial, as it would seem to be very rare when an actual injury took place under this law. The statute specifically authorizes "aggrieved [person] shall have a right of action." 740 ILCS 14/1. 

When it comes to whether an insurance company's defense of an insured entity is precluded by the Employment-Related Practices Exclusion, often a key provision of a commercial insurance policy, courts have come to different decisions, often depending upon the facts. Understanding the current status of the law in this area is unclear, as the Seventh Circuit's decision earlier this year in USA Gymnastics v. Liberty Insurance Underwriters, No. 20-1245 (7th. Cir. 2022), which pertains to timelines of appealing of a requirement to defend an insured, may raise more questions than answers when it comes to specific fact specific patterns. 

In the last month, separate class action complaints have been filed against companies in numerous industries and sizes, including not only giants like Youtube, Home Depot, and Amazon; but also several lesser known companies based in Illinois. 

The takeaway for businesses? There may still be serious concerns regarding previous BIPA violations. Just because no lawsuit is pending, does not mean the company is in the clear at this point. There is no shortage of BIPA litigation. While the law is still rather ambiguous in certain contexts, it is unambiguous that BIPA is here to stay and companies will continue to shell out massive checks as a result. 

Read the statutory text of BIPA here.

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