Mary Smigielski Speaks with Privacy Advisor About Implications of Recent Illinois Supreme Court BIPA Rulings

Chicago, Ill. (March 29, 2023) – Chicago Partner and Co-Chair of Lewis Brisbois’ Illinois Biometric Privacy Act (BIPA) Practice Mary A. Smigielski recently spoke with The Privacy Advisor – the International Association of Privacy Professionals’ (IAPP) flagship publication – for an article that discusses the implications of two recent Illinois Supreme Court BIPA decisions.

The article, titled, “The Rise of US State-Level BIPA: Illinois Leads, Others Catching Up,” describes that the Illinois Supreme Court’s recent BIPA opinions “sounded alarms around the privacy community.” That is, in Tims v. Black Horse, the court held that BIPA claims have a five-year statute of limitations. Then, in Cothron v. White Castle, the court determined that separate BIPA claims accrue for each scan of an individual’s biometric information. The article further notes that these decisions make organizations’ insurance coverage that much more critical due to the increase in potential liability for companies that capture biometric data.

In commenting on organizations’ initial decisions to institute biometric programs, Ms. Smigielski told IAPP, “Many companies were told when they rolled out the technology that it was not covered by BIPA and had no reason to believe otherwise. Just because something bears the label 'biometric' does not mean it is regulated by the statute." She added, "Now, we are seeing a multitude of arguments about what the language in BIPA actually means, which shows the ambiguity in the statute and how companies were acting in good faith when they implemented the technology."

Ms. Smigielski, who co-founded Lewis Brisbois' BIPA Practice – the first in the nation – also serves as co-host of The BIPA Radar podcast series. She has been on the cutting edge of BIPA litigation, frequently providing commentary to the news media on the topic. In addition to handling BIPA matters, Ms. Smigielski serves as the head of the firm’s Chicago Labor & Employment team. Her practice includes class/collective actions and single-plaintiff employment litigation, administrative charges, nationwide counseling, training, and sensitive workplace investigations, including at the C-Suite level.

Read the full IAPP article here.