ABSTRACT: A fresh wave of litigation has recently emerged in Illinois commonly known by the four-letter acronym GIPA—the Genetic Information Privacy Act. In a five-part series of posts, we examine GIPA’s background, key provisions of the Act, the remedies available under GIPA, certain types of GIPA cases being filed, and considerations for companies regarding GIPA litigation.
This week, Baker Sterchi is dedicating this blog to a discussion of the Genetic Information Privacy Act (‘GIPA”). In a five-part series of posts, we examine GIPA’s background, key provisions of the Act, the remedies available under GIPA, certain types of GIPA cases being filed, and considerations for companies regarding GIPA litigation.
Today, we examine the remedies available under GIPA:
Definition of an “Aggrieved” Person
Like the Illinois Biometric Information Privacy Act (“BIPA”), GIPA allows any person “aggrieved” by a violation of the Act to file a civil lawsuit. Neither Act defines what constitutes “aggrieved.” In 2022, the District Court for the Southern District of Illinois applied the definition of an “aggrieved person” used by the Illinois Supreme Court in a BIPA lawsuit to GIPA. Bridges v. Blackstone, No. 21-cv-1091-DWD, 2022 U.S. Dist. LEXIS 121205 (S.D. Ill. July 8, 2022). In Bridges, the court specifically relied on the Illinois Supreme Court’s opinion in Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186, previously discussed here. In Rosenbach, the Illinois Supreme Court determined that an individual does not need to allege some actual injury or adverse effect, beyond violation of his or her rights under BIPA, to state a claim under BIPA. The court in Bridges reasoned that although BIPA and GIPA differ significantly in scope, they have identical enforcement provisions. Under Illinois law, a statute should be construed in conjunction with other statutes touching on the same or related subjects considering the reason and necessity of the law, the evils to be remedied, and the objects and purposes to be obtained.
The Bridges court also believed that the Illinois Supreme Court’s “broad reading” of “aggrieved person” in Rosenbach was consistent with Illinois’ understanding of the term “aggrieved,” which has been defined as “having a substantial grievance; a denial of some personal or property right.” If Illinois state courts adopt the reasoning of the Bridges court and the Illinois Supreme Court’s interpretation of “aggrieved person” in the BIPA litigation context, plaintiffs will be able to pursue GIPA lawsuits without needing to allege or establish an actual injury or harm.
Also, like BIPA, GIPA provides for recovery of liquidated damages; recovery of reasonable attorneys’ fees and costs, including expert witness fees; and injunctive relief. 410 ILCS 513/40. Importantly, the Act also specifies that the damages may be recovered “for each violation.” This language is one of several provisions that make BIPA such dangerous legislation for defendants, as plaintiffs’ attorneys argue that their clients are entitled to recover $1,000 or $5,000 (BIPA’s liquidated damages amounts) for each, individual violation of BIPA by a defendant rather than as one lump sum. GIPA provides liquidated damages of $2,500 against any party who negligently violates a provision of the Act and $15,000 for any party who intentionally or recklessly violates a provision of the Act.
GIPA contains an exclusive remedy provision applicable to insurers for certain types of GIPA claims. In cases alleging that an insurer violated Section 30 of GIPA, the Illinois Insurance Code provides the exclusive remedy. GIPA defines “insurers” as: 1) an entity that is subject to the jurisdiction of the Director of Insurance; and 2) a managed care plan. 410 ILCS 513/10. A “managed care plan” means a plan that establishes, operates, or maintains a network of health care providers that have entered into agreements with the plan to provide health care services to enrollees where the plan has the ultimate and direct contractual obligation to the enrollee to arrange for the provision of or pay for services through: 1) organizational arrangements for ongoing quality assurance, utilization review programs, or dispute resolution; or 2) financial incentives for persons enrolled in the plan to use the participating providers and procedures covered by the plan.
Like BIPA, GIPA contains no statute of limitations provision. As previously discussed here, the Illinois Supreme Court decided in 2023 that the Illinois five-year “catchall” statute of limitations applies to BIPA claims. The court likely will be asked to similarly resolve this issue in the context of GIPA litigation.
As part of our continuing discussion of GIPA, tomorrow we will address GIPA lawsuits, focusing on those filed against insurers and employers, the types of defendants most frequently named in this litigation.