Hunton Retail Law Resource

On August 2, 2024, Illinois amended its Biometric Information Privacy Act (BIPA), curbing the potential for massive damages and modernizing the law’s written consent provisions. On their face, the amendments are not retroactive.  It remains unclear, however, whether this change in Illinois law will nonetheless be applied retroactively by the courts.

One of the biggest recent trends in retail may be slowing down.

According to U.S. Census Bureau estimates, retail sales plummeted 16.4% in April 2020. As state and local governments across the country begin to lift or ease Stay at Home Orders and business closures, retailers reopening their doors are grappling with how to protect their employees’ health and reassure customers that it is safe to shop.

For the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA). Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.^[1] Of these cases, a total of 1,564—over 69 percent—were filed in New York federal courts by just a handful of lawyers, including Jeffrey Gottlieb, Bradley Marks, C.K. Lee, Joseph Mizrahi, Jonathan Shalom and Doug Lipsky, with a surge following two unsuccessful motions to dismiss in cases involving Five Guys and Blick Art.

Measuring your costs against the competition is an important tool for staying competitive and minding the bottom line. Benchmarking studies performed by outside consultants are an increasingly common way for businesses to gain insight into how their contracts stack up against others' in the industry. In an age where retailers rely on outside vendors to provide many integral functions, making sure you are getting the best deal matters.

On April 18, 2017, the state of Washington passed House Bill 1493 (“HB 1493”), which sets forth requirements for businesses who collect and use biometric identifiers for commercial purposes. Under HB 1493, a biometric identifier includes a fingerprint, voiceprint, retina, iris or other unique biological pattern or characteristic used to identify a specific individual. Commercial use includes “a purpose in furtherance of the sale or disclosure to a third party for the purpose of marketing of goods or services when such goods or services are unrelated to the initial transaction in which a person first gains possession of an individual’s biometric identifier.” This bill comes after several other states have passed similar legislation regulating the commercial use of biometric identifiers, including the Illinois Biometric Information Privacy Act (740 ILCS 14) (“BIPA”) and the Texas Statute on the Capture or Use of Biometric Identifier (Tex. Bus. & Com. Code Ann. §503.001).