The BIPA Radar: A Lewis Brisbois Podcast Mary Smigielski & Josh Kantrow

In Episode 8 of The BIPA Radar, co-hosts Mary and Josh discuss a notable Illinois Supreme Court decision relating to the scope of the Illinois Biometric Information Privacy Act (BIPA). In Mosby v. Ingalls Memorial Hospital, the court unanimously decided that BIPA’s health care exemption extends to all biometric information collected, used, or stored for treatment, payment, and operations, and is not simply limited to patient biometrics such as fingerprint scans. In what has been a busy year for BIPA decisions, Mosby v. Ingalls Memorial Hospital signifies the first decision where the Illinois Supreme Court adopted the defendants’ proposed interpretation of the BIPA statute. 
 
We are excited to welcome co-chair of Lewis Brisbois’ Government Investigations & White Collar Defense Practice Sean Shecter and chair of the firm’s national Government Affairs & Public Policy Practice Daron Watts to The BIPA Radar! Listen to the full podcast to see what Sean and Daron had to say about the federal government’s response to the rapid rise of artificial intelligence (AI) across numerous industries, and potential biases that the new technology can bring with criminal prosecution and employment practices. This is a can’t-miss episode for attorneys handling cases involving biometrics, healthcare practitioners in Illinois, and those who are looking ahead to AI’s undeniable impact on modern society. 

In Episode 7 of The BIPA Radar, our co-hosts Mary and Josh dive into an eventful summer for the BIPA litigation landscape, as the number of class action lawsuits concerning the Act continues to skyrocket. The Illinois Supreme Court recently denied national restaurant chain White Castle’s petition for rehearing in Cothron v. White Castle, a case which dominated headlines in February when the court ruled that a separate claim accrues under BIPA each and every time a private entity collects or discloses a biometric identifier or information. Cases alleging violations of BIPA jumped over 65% in Illinois circuit courts in the first two months since the Cothron ruling. Mary and Josh also highlight Rogers v. BNSF Railway Co., the first BIPA case to proceed to trial, in which an Illinois federal district court ruled on post-judgment motions and vacated the $228 million damages award on June 30. The Rogers decision solidified the Supreme Court of Illinois’ statements in Cothron and a prior Illinois appellate court’s statements, which provide that damages under BIPA are discretionary, and that a jury should hear all evidence for and against entering an award for statutory violations that result in no real world harm. 15 years since BIPA was first introduced, business owners in Illinois and employment attorneys handling these complex cases should stay informed on these latest updates, and seek the appropriate legal guidance to defend claims and shore up compliance. 

Mary and Josh are excited to welcome insurance attorney George Manos to The BIPA Radar! George is a Partner in Lewis Brisbois’ Chicago office, and has focused his practice on insurance coverage claims and disputes throughout the country. In Episode 6, George breaks down insurance ramifications from the hotly anticipated Illinois Supreme Court decisions in Cothron v. White Castle Systems and Tims v. Black Horse Carriers, which may implicate more insurance policies that were issued several years ago. George also discusses the differences between occurrence-based and claims-made policies, whether general liability insurance can cover BIPA claims, and predictions for the future of BIPA coverage litigation. This is a can’t-miss conversation for Illinois businesses seeking clarity on how their existing coverage policies may protect them from BIPA lawsuits.

In Episode 5 of The BIPA Radar, Josh and Mary discuss the Illinois Supreme Court's recent opinions in Cothron v. White Castle Systems, which held that a separate claim accrues under BIPA each and every time a private entity collects or discloses a biometric identifier or information. They also dive into Tims v. Black Horse Carriers, which held that a 5 year statute of limitations applies to all sections of BIPA. This timely conversation highlights the court's reasoning behind its decisions and, critically, its rejection of arguments made by White Castle and numerous business groups that filed amicus briefs in support of a single-accrual interpretation, including an argument that imposing liability on Illinois businesses for hundreds or thousands of statutory violations – in which no harm occurred – could potentially result in punitive and astronomical damages awards to the tune of billions of dollars. Lewis Brisbois established the country’s first dedicated BIPA practice, and Josh and Mary, who have been on the cutting edge of BIPA litigation defense, guide our listeners through these significant opinions. 

On the heels of two major Illinois Supreme Court decisions in February, this episode of The BIPA Radar dives into the rising wave of class action cases as a result of the Act, and how these cases have been litigated and settled. Mary and Josh break down last year's decision in the first BIPA case ever tried, which resulted in a $228 million judgment against one of the nation’s largest railway companies. They also discuss how private mediators can serve as neutral parties who assist in facilitating settlements of challenging cases, and the unique role they can play in BIPA litigation. Business owners across the country who operate in the state of Illinois and are concerned with the proper management of biometric information should make sure to tune into this informative episode. 

In this episode of The BIPA Radar, Mary and Josh break down common preconceived notions why companies of all sizes might believe, sometimes mistakenly, that they are exempt from BIPA, including that they: (1) operate outside of Illinois (2) do not actually collect biometric data. Mary and Josh also examine prior cases that businesses can look to for guidance, such as workplace time clocks that utilize finger scans or photographs, more sophisticated technological fingerprints, artificial intelligence for job interviews, and online scans of identity documents with facial recognition technology. Our co-hosts delve into the biometric privacy landscape across the country, and look at a highly publicized case involving a lawyer in New York who was denied entry to an entertainment venue based on a face scan due to her firm being involved in a legal action against the venue’s owner. With the Illinois Supreme Court's ruling last week that a five-year statute of limitations applies to all BIPA claims, this is a can't-miss episode for Illinois businesses assessing how BIPA may apply to them, and how to comply with the statute.