Big Award Will Impact Coverage

Last October, in the first trial to go to judgment for Illinois’ Biometric Information Privacy Act violations, a federal jury awarded $228 million to the class action plaintiffs. The case, Rogers v. BNSF Railway Co., concerned a truck driver who alleged that BNSF violated the Act by scanning and retaining employees’ fingerprints without obtaining written informed permission or publishing a data retention or destruction schedule. Insurance companies have tried to deny biometric liability claims in the past by invoking general exclusions pertaining to the disclosure of confidential information and data-related liability, but many courts have held that such exclusions do not preclude coverage. Now insurers are including more specific exclusions, some of which already appear in general liability and employment practices policies. Because of the Rogers case, these exclusions may become more common in cyber, D&O, and other policies.