Lewis Brisbois is forming a team of lawyers to help clients defend against claims under a tough Illinois biometric privacy law that the firm believes plaintiffs will leverage more frequently after a recent state Supreme Court ruling.

The national firm has created the subgroup under its Labor & Employment practice. It will be led by two Chicago-based partners, Mary A. Smigielski and Josh M. Kantrow.

Lewis Brisbois noted in a statement that it expects more litigation against companies that collect or use biometric information in Illinois on account of a January decision, Rosenbach v. Six Flags Entertainment Corp.

The unanimous Illinois Supreme Court ruling permits an individual to bring a lawsuit under the decade-old Biometric Information Privacy Act even if that person hasn’t had any actual damage. Instead, any incident could trigger coverage.

“It’s a new landscape for companies after the Supreme Court decision, and the consequences for businesses are potentially staggering,” said Smigielski.

“The liability for companies could be in the millions of dollars,” she told Bloomberg Law.

The cases typically involve a company that has employees using their finger or thumb prints to sign in and out of work.

“If an employee clocks in, then clocks out and in for lunch then out again at the end of the day, and works at the same employer for years, that could wind up being a lot of damages,” said Smigielski.

Tough Climate

The Illinois privacy law allows plaintiffs to recover as much as $5,000 per intentional violation or $1,000 per unintentional violation. Some plaintiffs’ lawyers are asking for $20,000 per employee per day, but attorneys said there is likely to be more litigation before the parameters on the awards are set.

Texas and Washington State also have such privacy laws, but leave enforcement to attorneys general.

Litigation involving Illinois’ law already has been filed against companies such as Facebook and Google alleging some of the tech giants’ facial recognition tools are illegal.

Illinois passed its biometric privacy law, according to Charles Insler, an attorney for Hepler Broom, a St. Louis-based law firm, following the bankruptcy of a company called “Pay By Touch,” which operated the largest fingerprint scan system in Illinois, at grocery stores, gas stations and school cafeterias.

“Pay by Touch’s bankruptcy left thousands of people unsure of what would happen to their fingerprints,” said Insler, whose firm’s cyber law practice handles such lawsuits.

“Around 200 lawsuits have been filed in the last couple of years,” he said.

Businesses from locker rental companies to tanning salons have been among the targets, he noted in a March 2018 Illinois Bar Journal article.

“Now since violations are automatic,” he said, “they could add up to pretty astronomical amounts.”