The Illinois State Courts Strike Back: The Future Of BIPA Litigation After Visual Pak

The fingerprints of the federal courts are all over Biometric Information Privacy Act (BIPA) jurisprudence, and Illinois state courts may want to change that. A recent Illinois Appellate Court decision disagreed with a prominent Seventh Circuit decision, potentially altering the future of BIPA litigation in the insurance context.

In July 2023, the Seventh Circuit decided Citizens Insurance Company of America v. Wynndalco Enterprises, apparently settling a split among district courts on how liability insurance contracts should be read in conjunction with BIPA.¹ Only a few months later, in December 2023, the Illinois Appellate Court decided National Fire Insurance Company of Hartford v. Visual Pak Company, finding in no uncertain terms that Wynndalco was "wrongly decided" by the Seventh Circuit and it was "not... an accurate reflection of Illinois law."²