The Debate About GL Coverage For BIPA Claims Is Not Over -- It Is Just Starting

The debate concerning the applicability of general liability policies to claims arising out of violations of the Illinois Biometric Information Privacy Act (‘BIPA’) has not gone all that well for insurers. The Illinois Supreme Court in West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, held that a BIPA violation satisfies the publication criterion of the advertising injury coverage grant.

The Krishna court then proceeded to hold that the Recording and Distribution exclusion did not apply in part because the version of the exclusion at issue, in that case, did not prohibit the ‘collection’ of data—the specific conduct BIPA regulates.

Since then, a spate of district court rulings from the federal district court for the Northern District of Illinois might have prompted some to conclude that the battle for coverage is over.

But it is not for three reasons: (1) the Recording and Distribution exclusion construed in Krishna is not the same as that contained in current policies; (2) the federal district court rulings are not binding on Illinois state courts who will have occasion to consider coverage questions relating to BIPA; and (3) recent state appellate court rulings on the applicable statute of limitations will require that the Krishna publication holding be revisited.