The State of Illinois’ Biometric Information Privacy Act (BIPA) regulates, among other things, the collection, storage, consent, and destruction of biometric identifiers, including fingerprints and retinal scans. Following last year’s landmark BIPA decision in West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan Inc. in which the state’s highest court ruled that general liability policies potentially cover BIPA claims, policyholders have prevailed in many federal coverage disputes centered around this issue.

In an interview with Law360, Partner Peter Halprin said though there may be some outlier decisions since Krishna, the trend is in favor of insureds.

“My read of the cases is that the trend is really in favor of coverage and that Krishna was such an important, cornerstone decision,” Halprin commented. “What I think is likely to happen is that insurers will actually create exclusions that expressly exclude BIPA coverage. That’s the easy way to do it.”

“It is the insurer’s responsibility to clearly say what is covered and what is not, otherwise, courts will construe the policy in favor of coverage,” he added.

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