Insurer Duty to Defend Biometric-Related Statutory Violations: Triggers, Standing, Pleading, Exclusions

The year 2021 was another important one for biometric privacy, and counsel for insurers and policyholder defendants are bracing against the onslaught of lawsuits and the search for coverage. Businesses faced with such lawsuits have turned to their liability insurers for defense, and recent decisions suggest a roadmap for alleging and finding an obligation to defend.

Coverage for violation of biometric-related statutes and regulations is a national issue. The Federal Trade Commission (FTC) announced its intent to aggressively police the use of facial biometrics for the foreseeable future. Illinois, Texas, Washington, and California have statutes regulating biometric information. Many states, including Kentucky, Maine, Maryland, Massachusetts, New York, and West Virginia, are weighing bills with a private right of action. Many cities also have ordinances that regulate the use of biometrics and provide private rights of action, allow class litigation, and authorize statutory damages for noncompliance.

Claims arising from collecting and disclosing biometric data raise novel coverage questions under liability insurance policies and their exclusions.

Listen as this experienced panel discusses what the case law says about what and when coverage for biometric-related collection and disclosure is triggered under liability insurance policies and what exclusions apply.