Saikali, Duncan and Miller Discuss Future of BIPA Lawsuits in Law360 Article
The chairs of three Shook practices have authored a Law360 article on the effects of the Illinois Supreme Court's decision to allow a violation of the state's Biometric Information Privacy Act (BIPA) to be sufficient grounds for a lawsuit even without proof of actual harm. Al Saikali, the chair of Shook's Privacy and Data Security Practice, worked with Class Action Practice Co-Chair Tristan Duncan and Business Litigation Practice Co-Chair Gary Miller to author a response to the Illinois Supreme Court's decision in Rosenbach v. Six Flags Entertainment Corp.
Saikali, Duncan and Miller explain a number of issues that courts must consider in future decisions interpreting BIPA, including standing, notice and consent, the statute of limitations, intent and the definition of biometric data. "Assuming the plaintiffs jump all these hurdles, they must still demonstrate that these cases are appropriate for class certification," the authors state, noting that a number of pending BIPA cases feature a variety of fact patterns. "Given these differences between plaintiffs, it will be difficult for them to meet the commonality and fairness requirements for class certification."
"Defendants need only win one of these (or several other) defenses. Plaintiffs must win them all. In the meantime, plaintiffs must hope that the Illinois Legislature does not notice that hundreds of BIPA lawsuits are flooding the Illinois state court system, creating potentially crippling liability for companies that tried to adopt more secure methods of authentication, which could lead to an amendment that would make the law more consistent with its original intent."
Saikali, Duncan and Miller explain a number of issues that courts must consider in future decisions interpreting BIPA, including standing, notice and consent, the statute of limitations, intent and the definition of biometric data. "Assuming the plaintiffs jump all these hurdles, they must still demonstrate that these cases are appropriate for class certification," the authors state, noting that a number of pending BIPA cases feature a variety of fact patterns. "Given these differences between plaintiffs, it will be difficult for them to meet the commonality and fairness requirements for class certification."
"Defendants need only win one of these (or several other) defenses. Plaintiffs must win them all. In the meantime, plaintiffs must hope that the Illinois Legislature does not notice that hundreds of BIPA lawsuits are flooding the Illinois state court system, creating potentially crippling liability for companies that tried to adopt more secure methods of authentication, which could lead to an amendment that would make the law more consistent with its original intent."
