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12.19.23

Goldberg Kohn Principal David E. Morrison is quoted in "Biggest Illinois Decisions of 2023," published in the Dec. 18, 2023, issue of Law360. He comments on the BIPA precedents set in the Illinois Supreme Court.

According to the article, the Illinois Supreme Court essentially kicked the year off by addressing how Biometric Information Privacy Act claims accrue and how far back they can stretch - two rulings that have answered long-outstanding questions and significantly helped inform settlement negotiations.

BIPA lawsuits showed no sign of stopping throughout the year, and the justices returned to the biometric privacy arena with a November ruling that healthcare workers cannot pursue claims targeting fingerprints they scanned to access medication cabinets.

"The notion of discretionary damages is a significant factor at the negotiation table, because the issue is still technically an open one until an appellate court weighs in with an opinion."
David E. Morrison

Setting Significant BIPA Precedent

The Illinois Supreme Court issued two major rulings within two weeks of each other in February 2023, finding (1) first that BIPA suits can cover up to five years of allegedly unlawful biometric data collection, and (2) later ruling that claims accrue with each and every unlawful data scan or dissemination rather than simply the first.

The rulings were significant for the answers they brought to questions that had long clouded BIPA litigation, as well as for the effect they have had on settlement negotiations. The justices' claim-accrual ruling has had a particular impact because of the section that suggests damages are a discretionary award rather than a definite one.

The notion of discretionary damages is a significant factor at the negotiation table, because the issue is still technically an open one until an appellate court weighs in with an opinion on precisely that topic, David Morrison told Law360.

However, settlements seem to be happening faster after this year's rulings, he said.

"I think there's going to be more flexibility in trying to figure out what the right number is," but those values may begin to creep up over time because "I think there's probably just a little more leverage on the plaintiffs' bar side to ask for more than if we all thought that the damages were realistically limited at $1,000 per individual," he said.

And although not necessarily of impact for settlement negotiations, the justices' recent finding that BIPA's healthcare exclusion applied to medication cabinet finger scans was also significant because it highlighted a meaningful difference between the exclusion and the "outright exemption" for financial institutions otherwise governed by the Gramm-Leach-Bliley Act, said David, who typically represents banks in biometric privacy and other litigation.

The court clarified it does not read the healthcare exclusion as a wide-ranging exemption, which helps "to really stress" that BIPA's Section 25 exemption for financial institutions "is a broad exemption for the entire industry," David said. It's considered dicta, but the justices "definitely drew a distinction between the broad categorical exclusions and what was a biometric identifier under the statute," he said.

The cases are Cothron v. White Castle, case number 128004, Tims v. Black Horse Carriers, case number 127801, and Mosby v. Ingalls Hospital, case number 129081, all in Illinois Supreme Court.