Covering the Land of Lincoln

Court decisions determine the path to biometric registration

An Illinois Federal District Court ruling last week found a policyholder covered under employment practices liability insurance for a lawsuit filed under Illinois’ landmark Biometrics Act is one of several cases that have been decided or pending Shape parameters of the law.

While last week’s verdict in Twin City Fire Insurance Co. Vonachen Services Inc. et. As this could set a precedent for liability insurance for employment practices, previous judgments have stated that general liability coverage applies to some cases of violation of the law.

Other cases that have yet to be resolved include allegations against an online eyewear company and a university that tests students remotely.

All of these cases are alleged violations of the Illinois Biometric Information Privacy Act of 2008, which requires companies that store biometric data to notify the data subject in writing that the data is being collected or stored, as well as the purpose and the duration of the survey. It also requires companies to get the subject’s written consent.

In its judgment last week, a U.S. District Court in Peoria, Illinois quoted the language from Vonachen Services Inc.’s manual regarding Hartford’s Twin City Fire Insurance Co.’s involvement in the Peoria-based janitorial services company in two alleged allegations Defending class actions accusing him of violating BIPA, according to the ruling.

This is the first Illinois court to rule on the applicability of EPLI guidelines in any legal matter, according to plaintiffs attorney in the case, John S. Vishneski III, a partner of Reed Smith LLP in Chicago.

“As the litigation continues, we will see more and more derivative proceedings in insurance disputes like this,” said Gregory P. Abrams, partner at Faegre Drinker Biddle & Reath LLP in Chicago, which represents employers.

Mr. Vishneski said that most or all of the decisions reported on this issue are “in the context of the CGL, including last year’s Illinois Supreme Court ruling in West Bend Insurance Co. v Krishna Schaumburg Tan Inc. and Klaudia Sekura. In that case, the Supreme Court unanimously agreed to previous judicial and appeals decisions that West Bend, a Wisconsin-based insurer, was required to defend Krishna Schaumburg Tan Inc., based in Schaumburg, Illinois, for violating the Illinois Biometric Information Act.

The Twin City ruling has had a significant impact on employers and insurers and underscores the need to review the employee handbooks, said Fredric D. Bellamy, a member of Dickinson Wright PLLC in Phoenix who was not involved in the case.

This was a “well thought out and carefully analyzed decision and I think it will be very important in the future,” he said.

Observers say that while other states have similar laws, Illinois remains the only state that allows individuals to pursue legal disputes under a private right of action, even though New York City has such laws.

In 2019, the Illinois Supreme Court ruled in the Rosenbach v. Six Flags that individuals do not need to file a violation or adverse effect in order to successfully file a violation of the law. A settlement of the case was announced in June.

The state Supreme Court will also rule in the McDonald v Symphony Bronzeville Park LLC case whether the exclusive remedy provision of the Illinois Workers Compensation Statute excludes claims for damages under BIPA if an employee alleges that an employer has violated the employee’s legal privacy rights under the law.

In September 2020, a state appeals court unanimously ruled that a group of workers could proceed with the case.

Other key BIPA decisions in Illinois include Tims v Black Horse Carriers Inc. In its complex Sept. 17 ruling, a state appeals court ruled that a one-year statute of limitations applies to privacy claims and a five-year period to other civil actions.

Among the pending decisions, the 7th Chicago Court of Appeals in the Cothron v. White Castle Systems Inc. case will determine whether violations occur every time an illegal biometric scan is performed.

A lawyer who refused to be identified said the number of BIPA cases filed in Illinois fell from five to ten a week to three or four a week “just because every large company that could be sued was sued ”.

Cases have also been filed with consumers and students. For example, a lawsuit filed in the US District Court in Springfield, Illinois in Sherry Cruz v Ditto Technologies Inc. accused a California-based online eyewear company that uses virtual try-on technology of violating BIPA.

In addition, an alleged class action lawsuit filed in the U.S. District Court in Peoria, Illinois alleges that Bradley University violated BIPA in collecting biometric information while using an online remote proctoring tool, according to the Jan. Dürr and Gabriel Foley versus Bradley University.

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