Josh Kantrow Speaks with Law360 About Implications of Recent Illinois Supreme Court BIPA Rulings

Chicago, Ill. (February 27, 2023) – Chicago Partner and Co-Chair of Lewis Brisbois' Illinois Biometric Information Privacy Act (BIPA) Practice Josh M. Kantrow recently spoke with Law360 Insurance Authority for an article discussing the Illinois Supreme Court's recent rulings in Cothron v. White Castle and Tims v. Black Horse Carriers.

Titled “Ill. Justices’ BIPA Rulings Create Headaches for Insurers,” the article describes how the two recent decisions “together vastly increase” companies’ exposure in proposed class actions alleging violations under BIPA. Specifically, the justices in White Castle held that BIPA claims accrue each time an individual’s information is collected, as opposed to only the first time. The Black Horse decision held that BIPA claims are subject to a five-year statute of limitations, rather than a one-year statute for privacy violation claims.

Commenting on the significance of the two decisions, Mr. Kantrow told Law360, “Nothing about these decisions changes the basic coverage analysis, but it does expand the number of policies that will be put on notice.” He also explained that dicta in the White Castle decision provides potential reassurance for insurers and policyholders because it states that statutory damages under BIPA are not mandatory, and that trial courts may design their own damages awards based on what they deem to be fair.

Mr. Kantrow told Law360 the dicta are “a strong indication” of how the high court would rule on this issue if the question were properly before it. “The part about what damages are recoverable under the act and what trial courts can do is dicta, but I would say it’s pretty darn strong dicta, given that this is the Illinois Supreme Court, this is the highest court in the state of Illinois . . . and they are making a point to address concerns that various organizations who filed amicus briefs made about catastrophic damages,” he said.

Moreover, Mr. Kantrow predicted that, in light of the White Castle and Black Horse decisions, insurers likely will begin filing more coverage lawsuits to preserve their access to defenses and to avoid the consequences of Illinois’ estoppel doctrine. “Between estoppel and BIPA, it’s just a powerful combination to drive even more coverage litigation in Illinois.”

Mr. Kantrow, who co-hosts Lewis Brisbois’ BIPA Radar podcast series, has deep experience defending technology litigation matters, including cases involving BIPA, cybersecurity, data privacy/network security, and software developers. He also regularly handles complex business litigation matters, including class action litigation, throughout the United States.

Read the full Law360 Insurance Authority article here (subscription may be required).