David E. Morrison, a Principal in Goldberg Kohn's Litigation Group, is quoted in the Law360 article, "Ill. Justices' BIPA Ruling Invites 'Callous' Critique," published Feb. 17, 2023. The article concerns the Illinois Supreme Court's long-awaited decision on how often biometric privacy claims accrue. In a close 4-3 decision, on Feb. 17, 2023, the high court's majority found plaintiffs could bring Biometric Information Privacy Act claims for every time their data was unlawfully collected or disclosed, rather than just the first time. Mr. Morrison also wrote about the decision HERE.
The Law360 article author, Celeste Bott, writes that the decision "dealt a blow to defendants facing massive potential damage awards and ultimately left it to trial courts and state lawmakers to strike a balance between compensating privacy plaintiffs and protecting companies from financial ruin."
The court acknowledged that siding with plaintiff Latrina Cothron could expose BIPA defendants to catastrophic liability, with defendant White Castle estimating that it could face damages exceeding $17 billion if the court found it was liable each and every time an employee scanned their fingerprint for timekeeping purposes.
But the court said its hands were tied because "the statutory language clearly supports plaintiff's position." Instead, it invited the state legislature to revisit the landmark privacy law, saying policy-based concerns about potentially excessive damage awards under BIPA are best addressed by Illinois lawmakers.
Mr. Morrison said the majority did its best to limit the impact of its opinion by throwing that "potential life saver" to the state's business community when it made clear that lower courts have discretion to fashion a damage award that is both fair and would not "destroy" the defendant business.
He continued: "It will be critical to see courts exercise judicial discretion to give the business community a baseline of their realistic potential liability for violating BIPA, if for no other reason than to underwrite the value of potential claims."
There have been bills introduced in recent years that would revise BIPA, but there has not been an appetite in the legislature to move them forward. Some attorneys predict the White Castle decision may finally be impactful enough on the state's business community to move the needle, even if curbing the ability for people to sue for privacy violations isn't the most popular platform for a politician to adopt.
"If Illinois wants to retain business and entice new businesses to come to Illinois, then a legislative fix would appear essential," concluded Mr. Morrison.
Mr. Morrison has closely followed the wave of class-action lawsuits under the Illinois Biometric Information Privacy Act and the challenges they present to Illinois companies. In addition to his alert, "Illinois Supreme Court's Latest Ruling on the Biometric Information Privacy Act Will Send Shock Waves Through The Illinois Business Community," he wrote, "Illinois Supreme Court Further Expands the Scope of the Biometric Information Privacy Act."