b'EMPLOYER UPDATEIs There Insurance Coverage for an UnderlyingBIPA Lawsuit?THE TAKEAWAY THE EXCLUSION GAMEBy Charles Insler Illinois First District Appellate CourtBIPA establishes that individuals Partner affirmed a Circuit Courts decisionpossess a right to privacy in and HeplerBroom LLC that an insurer has no duty to defendcontrol over their biometric identi-its insured in an underlying BIPAfiers and biometric information.[6] lawsuit. A lawsuit asserting a violation of this right to privacy therefore falls within INTRODUCTION the personal and advertising inju-The Biometric Information Priva- ry provision of an insurance policy, cy Act (BIPA or Act) has launchedtriggering coverage.[7] That much is hundreds, if not thousands, ofclear. Indeed, it is all but uncontested lawsuits across the state and federalthat the underlying BIPA lawsuits at courts of Illinois. Some BIPA lawsuitsissue allege personal and advertising February 13, 2024 have even made their way to otherinjury.[8] Instead, the issue is wheth-Posted in Cybersecurity states,[1] with some settling for enor- er a policy exception unambiguously mous sums.[2] With so many BIPAapplies to preclude coverage.[9] lawsuits, insureds and insurers haveAs of December 2023, there been asking an important question:was no clear answer to this question does an insurance policy provideas the federal district courts have coverage for these BIPA lawsuits? reached conflicting decisions on this important issue,[10] even as to the BIPA establishesWHAT IS BIPA? same named insured.[11] This all safeguards andBIPA establishes safeguards andchanged with Value Pak.procedures relating to the retention,BIPA coverage litigation has procedures relatingcollection, disclosure, and destruc- centered around three specific policy to the retention,tion of biometric data.[3] Passed inexclusions:October 2008, BIPA is intended to1.Statutory Violation Exclusioncollection, disclosure,protect a persons unique biologi- 2.Employment-Related Practices cal traits: the data encompassed inExclusionand destruction ofsomeones fingerprint, voice print, biometric data. retinal scan, or facial geometry.3.Access or Disclosure ExclusionGiven the sensitivity of this informa- Remarkably, the federal courts tion[4]unlike a stolen credit card,had failed to reach uniformity with there is no replacing or reissuingrespect to any of these exclusions. your fingerprintBIPA providesEach separate exclusion found cases a private right of action for [a]nyin support and against coverage. person aggrieved by a violation ofValue Pak has now resolved this.this Act . . . .[5]10ILLINOIS BUSINESS LEADER'