In a recent Bloomberg Law story, representatives of the Perkins Coie Law firm write that SB 2979, which Illinois Governor JB Pritzker signed into law last week, is more hopeful than some thought concerning the state’s Biometric Information Privacy Act.
They write:
The lack of an explicit retroactive provision in SB 2979 may disappoint defendants in ongoing BIPA litigation. However, the bill offers multiple ways for judges to use their discretion to limit BIPA.
While defendants may be unable to argue that SB 2979 technically applies retroactively, they can argue that courts should take judicial notice of the bill and its legislative history, which show the legislature’s intent to limit BIPA damages to a single violation and to prevent ruinous damages for defendants.
Ryan Spear, Nicola Menaldo and Mylan Traylor of Perkins Coie write that legislative intent voiced on during the bill’s consideration in Illinois Chambers may hold a key for BIPA defendants:
Generally, if the Illinois legislature indicates the temporal reach of an amendment in the bill or through legislative history, courts must honor the intent in the absence of specific exceptions, which aren’t relevant here. SB 2979 doesn’t directly address retroactivity, but there are hints of legislative intent.
During a House floor debate on May 16, Rep. Daniel Didech (D) asked if the amendment applied retroactively to past or pending cases. Williams replied that it didn’t but noted that “a reviewing court could take judicial notice of our amendment to the Act in determining an initial award or in reducing an award.”
Other bill sponsors, including Sen. Bill Cunningham (D), stated that one of the reasons the legislature left out a specific retroactivity provision was to avoid pushback for potentially undoing previous judgments. However, Cunningham advised judges in pending lawsuits to note the legislature was answering the Illinois Supreme Court’s invitation for guidance about how liability should be accrued: on a per-person, not per-violation basis.
Those that insisted the bill wasn’t strong enough, and urged rejecting SB2979 and starting all over again in the future were evidently not hearing from their membership what the Technology & Manufacturing Association was hearing from theirs.
Small and midsize manufacturers that innocently enacted fingerprint technology in order to accurately and efficiently record hourly work notified TMA that they were facing expensive lawsuits and settlements pertaining to BIPA applications.
TMA’s State Lobbyist David Curtin worked with State Senator Bill Cunningham to urge support for SB 2979 as it was considered in the Illinois legislature.
“This was a significant piece of legislation. For months we have been urging lawmakers to fix the BIPA legislation by filing witness slips, hosting informational sessions with members and legislators, and testifying in committee to share the real-life consequences of the flawed Act,” said Curtin.
“While this bill is not perfect, the 2nd and 3rd generation manufacturers who are being subject to these lawsuits feel a sense of relief that they can keep their doors open and continue producing for our economy.”
For more on the Perkins Coie assessment of the BIPA reform law, see “Illinois’ Plan to Limit Privacy Violation Damages Opens New Door”
