CBA Record May-June 2025

Insights on Navigating BIPA Compliance and Litigation

and the status of BIPA litigation. He highlighted the complexities of claims for damages. Another complex issue he discussed is when does an incident rise to a BIPA violation: An issue now being litigated involves whether, when a person unlocks their laptop with their fingerprint but has to wiggle their finger around for it to work, does each time they wiggle their finger around constitute an incident? Lastly, Cotter shared that BIPA does not apply to government agencies, the X-ray Retention Act, and financial institutions. Ryan spoke about damages, the number of incidents regarding BIPA violations, and the issue of notice under BIPA sec tion 15(a). He explained how, in Rosen bach v. Six Flags Entertainment Corp., 2019 IL 123186, the Illinois Supreme Court unanimously held that a plaintiff does not need to allege any actual injury or damages to successfully state a claim under BIPA. Ryan also talked about two new laws regarding BIPA. Under the first, a private entity that collects or discloses a person’s biometric data without consent can only be found liable for one BIPA violation per person regardless of the number of times BIPA Damages, Exemptions, and New Legislation

By Judge Jasmine V. Hernandez, Circuit Court of Cook County, and Mohammad Barakat, Law Clerk to Judge E. Kenneth Wright, Jr.

C BA’s Municipal and Law Commit tee gathered at the Daley Center to hear perspectives on the Illinois Biometric Information Privacy Act (BIPA) and updates on the status of BIPA litiga tion. Judge Allen P. Walker, Circuit Court of Cook County; John P. Ryan, partner at Hinshaw & Culbertson LLP; Daniel A. Cotter, partner, Dickinson Wright PLLC; and Bradley Dlatt, counsel, Perkins Coie LLP, shared their expertise with the attendees. Judge James McGing, co-chair of the Municipal and Law Committee, moderated the discussion.

require that a written policy be made avail able to the public; these sections also out line guidelines on destroying the data. He also shared how, under BIPA, it is unlaw ful for any private entity to buy or sell bio logical data unless they have informed the subject of that biological data in writing and that subject agrees to it. Rights of action and damages were also discussed, including the statute’s imposition of a fine of $1,000 if the party handling the biological data was negli gent. Judge Walker explained the Illinois Supreme Court case of McDonald v. Sym phony Bronzeville Park, LLC, 2022 IL 126511, 193 N.E.3d 1253, 456 Ill. Dec. 845, which held that employee claims for damages for violations of their statutory privacy rights under BIPA are not barred by the Workers’ Compensation Act. Current BIPA Litigation Cotter summarized other BIPA lawsuits

BIPA Provisions and Implementation

Judge Walker described BIPA’s legisla tive history, breaking down its parts and explaining how it has been implemented. He also discussed the requirements for holding on to such biological data. For example, BIPA sections 15(a) and (e)

18 May/June 2025