The Authors

Cort T. Malone

Cort T. MaloneAnderson Kill P.C.

Cort T. Malone is a shareholder in the New York and Stamford offices of Anderson Kill and is the Chair of the firm’s Biometric Liability Insurance Recovery Group. Cort is an experienced litigator, focusing on insurance coverage litigation and dispute resolution, with an emphasis on commercial general liability insurance, cyber insurance, employment practices liability insurance, advertising injury insurance, directors and officers insurance, and property insurance issues. He is also a member of the firm’s Restaurant, Retail & Hospitality, Environmental Law, Cyber Insurance Recovery, and COVID Task Force groups.

Cort also possesses extensive commercial litigation experience, including arbitration and alternative dispute resolution relating to a variety of tort, contract, and regulatory disputes. While attending the Fordham University School of Law, Cort was a member of the Fordham Moot Court Board and garnered several awards for both oral argument and brief writing skills at various inter- and intra-school competitions. He spent five years teaching a first-year Legal Writing course as an adjunct professor at Fordham Law.

Abigail Damsky

Abigail DamskyLaw Student, Cardozo School of Law

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Litigation After Biometric Privacy Law Violations:

Policyholder Victories and Their Implications

Understanding biometric data is vital because its use is increasing through all facets of society. The frequent use of BII has led to states proposing and passing biometric privacy laws to protect consumers and employees. As more states pass these laws, it is critical not only to follow court decisions but also to understand how insurance companies are attempting to avoid liability for such claims.

Policyholders should review their new or renewal policy terms and be aware of any effort by insurance companies to add more specific exclusionary language in an effort to limit coverage for claims (alleging violations of biometric privacy laws).

Abstract:

States and cities, including New York City, are following Illinois’ lead in enacting biometric privacy laws intended to protect employees’ and consumers’ biometric information. Courts, particularly in Illinois, have cleared up early uncertainty by ruling consistently in favor of policyholders where insurance coverage for violations of the Illinois Biometric Information Privacy Act (BIPA) is at issue. In response, insurance companies are implementing new measures to try to avoid paying for these liabilities. Another emerging area sure to lead to litigation involving privacy and data collection laws is artificial intelligence. As litigation involving privacy laws and artificial intelligence continues to proliferate, will businesses have the same success obtaining insurance coverage for these claims in courts throughout the country as policyholders have in BIPA-related insurance disputes in Illinois? While only time will tell, companies and policyholders should be examining their use of biometrics and artificial intelligence in the present, as well as their current and renewal insurance policies, to ensure adequate protection in the future.

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