Biometric Information Privacy

Our Biometric Information Privacy Group at BFKN helps clients navigate the legal challenges presented by biometric privacy laws, such as Illinois’s Biometric Information Privacy Act (BIPA). Through BIPA, the plaintiffs’ bar has latched on to a powerful vehicle to seek extraordinary damages from companies operating in the State of Illinois who use a broad range of technology, ranging from fingerprint-powered time clocks to marketing features involving a user’s face or hands. Our attorneys not only develop winning defenses to get these cases successfully dismissed or reasonably resolved, but also counsel and advise clients on how to operate safely and successfully in this difficult environment.

The Biometric Information Privacy Group at BFKN represents clients in a wide variety of disputes and counseling scenarios involving data that could be considered biometric. BIPA class actions have flooded Illinois’s state and federal courts (as well as those of other states), based on circumstances ranging from biometric time clocks to “augmented reality” or “virtual-try on” marketing campaigns. Clients appreciate that the BFKN team is well-versed in this fast-evolving area of law and able to quickly identify and implement defense strategies that have defeated claims altogether and led to reasonable resolution of others. The Group also helps clients identify, secure and maximize indemnity and insurance coverage for BIPA claims.

Our attorneys’ work extends beyond litigation and into counseling and compliance measures. Many technologies popular on social media and other digital marketing efforts, such as augmented reality and “virtual try-on,” present unique issues for biometric privacy law. BFKN counsels its clients on strategies to avoid and mitigate these risks while continuing to provide a top-notch customer experience.

Litigation

BFKN attorneys have represented clients in a range of lawsuits alleging use of biometric information, including:

• Representing multiple major luxury goods manufacturers in defense of BIPA class action relating to “virtual try-on” feature for sunglasses. Prevailed on motion to dismiss based on BIPA’s “general health care exemption” due to medical benefits of sunglasses and virtual try-on service.
• Representing a major retailer accused of violating BIPA with “virtual make-up artist” feature for virtually “trying on” makeup, concluding with a favorable settlement.
• Representing a franchise operator accused of requiring employees to use biometric timeclocks without appropriate consent, concluding with a dismissal of claims.

Counseling

BFKN attorneys counsel numerous major luxury goods manufacturers and retailers on BIPA compliance and vendor contracting in connection with “virtual try-on” features. Our attorneys combine their legal and industry knowledge of BIPA, privacy, and technology to advise on strategies such as “geo fencing” and other technical safeguards to tailor consumer access for BIPA compliance or management, to answer substantive questions about what forms of technology are “biometric” at all, to draft data management and retention policies and appropriate consumer disclaimers, and to counsel on best practices for vendor contracting. BFKN’s business centered approach helps its clients manage and mitigate risk while helping those clients meet their customers’ service expectations and grow their client base.

Insurance Coverage

As BIPA lawsuits have proliferated, courts are grappling with complicated insurance coverage issues. Our insurance coverage attorneys are attuned to developments in the insurance industry and the courts and regularly advise clients regarding and represent them in claims with their insurance companies for BIPA insurance coverage. We have helped clients obtain coverage for BIPA matters under commercial general liability (CGL), cyber, and employment practices liability insurance (EPLI) policies.

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