b'Is There Insurance Coverage for an UnderlyingBIPA Lawsuit?THE STATUTORY VIOLATION EXCLUSIONCertain statutes are well-known for spawning litigation. To that end, in-surers have noted their unwillingness to insure against such claims. In a typical policy, the Statutory Violation exclusion would mean the insurance did not apply to any injury arising out of a violation of:p. Recording And DistributionIn Krishna, the Illinois SupremeIn Visual Pak, the First District Of Material Or Information InCourt reviewed a very similarCourt of Appeals found the exclusion Violation Of Law exclusion and found the BIPA statutelanguage before it was broader than Personal and advertising injurywas not a statute of the same kindthat found in the Krishna case.[19] arising directly or indirectly outas the TCPA and the CAN-SPAMThe Visual Pak court also noted that of any action or omission thatAct, since the Act does not regulateit was simply impossible to deny that violates or is alleged to violate: methods of communication.[13]it [the statutory exclusion violation] For those courts finding thedescribes BIPA.[20] On this issue, (1) The Telephone ConsumerStatutory Violation exclusion doesthe Illinois Court of Appeals dis-Protection Act (TCPA), includingnot apply, BIPA is simply not theagreed with the Seventh Circuits de-any amendment of or addition tosame kind of statute as the TCPA,cision in Wynndalco, finding the fed-such law; the CAN-SPAM Act, or the FCRA. eral court had given too little credit (2) The CAN-SPAM Act of 2003,[14] These statutes regulate methodsto the reasonable person purchasing including any amendment of or addi- of communication (the TCPA andthis business liability policy.[21] All tion to such law; CAN-SPAM) and the use of materialsof the statutes listed in the exclusion (3) The Fair Credit Reporting(the FCRA).[15] BIPA, by contrast,dealt with issues of personal privacy, Act (FCRA), and any amendment ofregulates the collection, use, storage,which meant an underlying lawsuit or addition to such law, including theand retention of biometric identifiersalleging a violation of BIPA would Fair and Accurate Credit Transac- and information.[16] At best, it isfall under the catchall phrase of the tions Act (FACTA); or unclear whether BIPA is sufficientlyviolation-of-law exclusion found in (4) Any federal, state or localsimilar to the listed statutes; at worst,paragraph 4.[22]statute, ordinance or regulation, oth- it is different in kind.[17] For those er than the TCPA, CAN-SPAM Actcourts finding the Statutory ViolationEXCLUSIONS FOR of 2003 or FCRA and their amend- exclusion does apply, BIPA is of theEMPLOYMENT-RELATED ments and additions, that addresses,same kind, character and nature asPRACTICES AND ACCESS prohibits, or limits the printing,the enumerated statutes becauseOR DISCLOSUREdissemination, disposal, collecting,all the statutes protect and governIn light of this ruling, the Visual recording, sending, transmitting,privacy interests in personal infor- Pak court declined to address either communicating or distribution ofmation.[18] the Employment-Related Practices material or information.[12]MARCH 202411'